FCC Net Neutrality Rules Blocked By Federal Appeals Court

The FCC‘s effort to establish rules of the road for internet service has been sidelined again, as a federal appeals court has blocked the latest version of net neutrality regulations.

The 6th Circuit Court of Appeals concluded that the FCC did not have the authority to implement the rules, which require that ISPs treat all traffic equally. The rules also aimed to limit ISPs from establishing “fast lanes” and “slow lanes,” depending on who paid for preferential treatment.

While the FCC has gone back and forth for nearly two decades on net neutrality, depending on whether a Democrat or Republican is in the White House, the latest decision casts doubt on any future effort to establish robust regulations. That’s because the Supreme Court last year reversed a precedent that gives deference to federal agencies in interpreting laws they enforce. The precedent stemmed from a 1984 case, Chevron vs. NRDC, and came to be known as “Chevron deference.”

A three-judge panel noted that the net neutrality rules “issued during the Biden administration—undoes the order issued during the first Trump administration, which undid the order issued during the Obama administration, which undid orders issued during the Bush and Clinton administrations.” Applying the most recent Supreme Court decision, the judges wrote, “means we can end the FCC’s vacillations.”

The FCC under President Barack Obama passed the most robust set of net neutrality rules, establishing their legal footing by reclassifying internet serves as a Title II telecommunications service, or a common carrier. The latter regulatory maneuver drew widespread opposition among major telecom companies like Comcast and AT&T.

The latest appellate decision held that broadband internet service was actually an “information service,” meaning that the FCC lacked authority to impose rules under Title II. The judges also ruled that mobile service could not be regulated as a common carrier.

The FCC under President Donald Trump largely reversed the FCC rules, but they were reinstated when Democrats regained control of the agency during President Joe Biden’s term.

FCC Chairwoman Jessica Rosenworcel acknowledged that the latest ruling means that the fate of net neutrality likely rests with Congress.

“Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” she said in a statement. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”

The end of “Chevron deference,” meanwhile, could prove to complicate Trump administration efforts to establish its own regulations. The incoming chair of the FCC, Brendan Carr, opposed reinstating the rules. But he has called for the FCC to take action on the way that major internet platforms, like Facebook and YouTube, moderate their third-party content, arguing that they have had a bias against voices on the right. Any action is likely to be opposed by tech giants and challenged in court.