When the FCC released the Net Neutrality Order on April 25, 2024, reinstating Net Neutrality, it had been repeatedly warned that it was facing an uphill battle. The Order would give the Commission total control over the Internet behavior of ISPs by reclassifying broadband Internet access service as a Title II telecommunications service, forbidding blocking, throttling or paid prioritization of Internet traffic and reestablishing a general conduct rule for Internet behavior. As we noted in June, ISPs were certainly going to appeal the Order to the courts. That they did, and after a lottery was held, the Sixth Circuit Court of Appeals in Cincinnati wound up hearing the appeal. This, despite efforts from the FCC to transfer the case to the DC Circuit Court which it believed would be more favorable to its cause.
Initially, the Sixth Circuit stayed the Net Neutrality Order until August 5, 2024, but the ISP appellants requested the Court to keep the stay in place indefinitely, until the legal merits of their appeals could be considered. In an Order released on August 1, 2024, in Case 24-3449 the Court agreed, finding that because the “broadband providers have shown that they are likely to succeed on the merits and that the equities support them, we grant the stay.”
The chief reason the Court agreed with the broadband providers was the FCC’s failure to cite Congressional support for its actions under the Supreme Court’s “Major Questions” doctrine. A result forecasted by most legal experts.
The Court explained,
An agency may issue regulations only to the extent that Congress permits it. When Congress delegates its legislative authority to an agency, it presumably resolves major questions of policy itself while authorizing the agency to decide only those interstitial matters that arise in day-to-day practice. When Congress upsets that presumption and delegates its power to alter the fundamental details of a regulatory scheme to an agency, it must speak clearly, without hid[ing] elephants in mouseholes. The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.
Net neutrality is likely a major question requiring clear congressional authorization. As the Commission’s rule itself explains, broadband services are absolutely essential to modern day life, facilitating employment, education, healthcare, commerce, community-building, communication, and free expression to say nothing of broadband’s importance to national security and public safety. Congress and state legislatures have engaged in decades of debates over whether and how to require net neutrality. Because the rule decides a question of vast economic and political significance, it is a major question.
The Communications Act likely does not plainly authorize the Commission to resolve this signal question. Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services and never did so with respect to broadband providers specifically or the internet more generally. (Case 24-3449, at pp. 6-7.).
Based on this rationale, the Court stays the FCC Order until it can determine the legal merits of the appeal. Oral argument will be held between October 28 and November 1, 2024. The petitioner’s opening brief defending their position, was filed on August 12, 2024. The FCC must submit its reply brief by September 11, 2024. Finally, the petitioners must submit their reply brief by October 2, 2024. With oral arguments not until the end of October, it is doubtful that the Court will release a final Order this year.
Of course that will be after the Presidential election. If Trump wins, Net Neutrality is going nowhere. The Republicans will have the majority at the FCC and will withdraw the FCC’s Net Neutrality Order. If Harris wins, the Order will head to the Supreme Court, where it is likely to fall victim to the Major Questions doctrine. Thus, unless something drastic happens, Net Neutrality is extremely unlikely to become the law of the land.
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