By Nathaniel Cambridge; Photo Credit: Visionary Marketing (X: @vismktg)
The Supreme Court’s decision in Loper Bright has delivered another blow to net neutrality, which has been a hot button issue over the past decade.[1]
Last year, in the landmark case Loper Bright Enters. v. Raimondo, the Supreme Court struck down Chevron deference, so courts must now exercise their independent judgment when deciding whether agencies have acted within their statutory authority.[2] This monumental ruling set the stage for the Sixth Circuit to rule against the Biden administration’s attempt to resurrect net neutrality.[3] Net neutrality, which became part of the political lexicon during the 2010s, is a policy that essentially forbids internet service providers (“ISPs”) from “discriminating” against particular internet traffic by throttling or prioritizing particular services.[4] The Obama administration’s FCC instituted new rules in 2015 in support of net neutrality, which were later rescinded under the Trump administration.[5] President Biden signed an executive order in 2021 encouraging the FCC to bring back these rules, and they voted to do so last year.[6]
The Sixth Circuit’s ruling broadly characterizes the FCC’s approach in regulating the internet as being inconsistent since the late 2000s, culminating in the FCC’s 2015 determination that Broadband ISPs are common carriers, which subject them to extensive regulations under Title II of the Telecommunications Act of 1996.[7] The Trump administration rescinded this approach in 2018, finding that ISPs only offer “information services” and therefore lifting the net neutrality requirements.[8] The D.C. Circuit applied Chevron doctrine to challenges to both orders, upholding them both as permissible constructions under the Act.[9] The FCC’s 2024 Safeguarding and Securing the Open Internet Order again deemed ISPs as providing a telecommunications service, requiring them to abide by net neutrality principles, but this time, the court struck down the order entirely.[10] What changed this time? Loper Bright.[11]
While the FCC had been consistent in its approach to regulating ISPs for the 20 years after passing the Telecommunications Act, the Obama administration’s FCC reclassified ISPs as providing telecommunications services under Title II, which would be subject to common carrier regulations, as opposed to information services, which are not.[12] The Trump administration reversed course before the Biden administration brought back these regulations, leading to challenges by multiple ISPs.[13] The Judicial Panel on Multidistrict Litigation chose the Sixth Circuit to hear their consolidated petitions for review and stayed the order pending review, finding that whether ISPs are common carriers are telecommunications or information services is likely a “major question” that requires clear congressional authorization, which is missing from the Telecommunications Act.[14] Pursuant to the Administrative Procedure Act, the Sixth Circuit found that the Safeguarding Order misreads the text of the Communications Act so the FCC exceeded its statutory authority in promulgating its order.[15]
The future of net neutrality is yet to be seen. While current Chairwoman Jessica Rosenworcel and Commissioner Anna Gomez called on Congress to enshrine these protections in federal law, future commissioner Brendan Carr, selected to replace Rosenworcel by the incoming president, applauded the court’s ruling, as did former chairman Ajit Pai, who argued that the regulations are unlawful, and regulators should focus on “what actually matters” to American consumers.[16] Hopefully the lack of these regulations will not embolden ISPs to outwardly engage in discriminatory practices. In the meantime, state regulations like California’s Internet Consumer Protection and Net Neutrality Act of 2018 will continue to apply.[17]
Nathaniel Cambridge is a second-year student at Vanderbilt Law School from Nashville, Tennessee. After graduation, he plans to move to New York City and work in the public sector.
[1] Andy Chalk, Net Neutrality is Dead Again: US Court Says the FCC Can’t Bring Back Obama-era Internet Regulations, PC Gamer (Jan. 2, 2025), https://www.pcgamer.com/gaming-industry/net-neutrality-is-dead-again-us-court-says-the-fcc-cant-bring-back-obama-era-internet-regulations/.
[2] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).
[3] See Ohio Telecom Assoc. v. FCC (In re MCP No. 185), No. 24-7000 (6th Cir. Jan. 2, 2025), https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pdf.
[4] See Chalk, supra note 1.
[5] Id.
[6] Id.
[7] In re MCP No. 185: FCC, at 1-2.
[8] Id. at 2.
[9] Id.
[10] Id.
[11] Id. at 2 (citing Loper Bright, 144 S. Ct. at 2273).
[12] See id. at 5-7.
[13] Id. at 8.
[14] Id. (quoting In re MCP No. 185, 2024 WL 3640468, at *1, *5 (6th Cir. Aug. 1, 2024 (per curiam))).
[15] Id.
[16] Chalk, supra note 1.
[17] See S.B. 822, 2018 Leg., Reg. Sess. (Ca. 2018).
