- A Circuit Court for the U.S. Court of Appeals has again stayed the enforcement of net neutrality, which would have gone into effect on August 5
- It's a blow to the FCC, led by Chairwoman Jessica Rosenworcel
- The court said net neutrality is likely to be overturned because of the Supreme Court's recent reversal in the Chevron case
In a blow to the Federal Communications Commission (FCC), the Sixth Circuit of the U.S. Court of Appeals has ordered a stay on net neutrality rules until a lawsuit filed in the court is resolved.
The FCC can’t claim that it was a partisan decision because the three judges on the panel who ruled on the stay were appointed by presidents George W. Bush (R), Bill Clinton (D) and Joe Biden (D).
The 6th Circuit had previously granted a short stay, until August 5, in the case filed by several broadband trade groups to overrule net neutrality. In the interim, the court reviewed additional information.
Today, the court wrote, “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 court said the groups that filed the lawsuit to reverse net neutrality are likely to succeed, primarily because of the Supreme Court’s recent reversal a longstanding order in Chevron U.S.A. Inc. v. Natural Resources Defense Council. The Supreme Court’s reversal of Chevron calls into question the authority of federal agencies. The ruling says that in cases where there is “a major question” of national policy, federal agencies don’t have the final authority to make a decision. The decision must be made by congress.
Today, the 6th Circuit wrote, “Net neutrality is likely a major question requiring clear congressional authorization” because broadband is an absolute essential in modern-day life.
FCC Chairwoman Jessica Rosenworcel responded to the ruling with a short statement, saying, “The American public wants an internet that is fast, open and fair. Today’s decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality.”
However, Republican FCC Commissioner Brendan Carr posted on Twitter that the ruling was “A good win in the broader & ongoing effort to rein in regulatory overreach from Washington.”
Four trade associations — ACA Connects, CTIA, NCTA and USTelecom — that are part of the group of petitioners that filed the case against net neutrality jointly said, “By all measures, broadband in the U.S. has been thriving under a light-touch regulatory framework. We’re pleased that the Sixth Circuit has preserved that framework during the appeal process, thus shielding providers and their customers from the many harms that would stem from attempting to comply with the FCC’s ill-fitting and ambiguous common carrier mandates.”
New Street Research policy analyst Blair Levin said the court is likely to formally overturn the FCC order in the first part of next year.
Levin wrote, “We have been skeptical that the FCC order presents a material economic challenge to the ISPs, nor do we think winning creates a material upside for them."
However, Levin did note that if net neutrality is overturned that opens the door to state regulation of broadband, including the potential of rate regulation.
A court in New York has upheld a state law that requires ISPs to offer a low-cost broadband service for low-income customers. And other states could follow suit. There is no national law that says states can't impose rate regulation, so the broadband providers may end up fighting that on multiple fronts.