On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit issued a ruling setting aside the FCC’s 2024 Open Internet Order (Order). In setting aside the FCC’s Order the Court found that Broadband Internet Access Service (BIAS) is an information service and therefore the FCC lacks the statutory authority to impose its net neutrality policies through the telecommunications service provision of the Communication Act. Further, the Sixth Circuit found that the Communications Act does not provide the FCC with the authority to apply its proposed net neutrality rules to mobile broadband service. In reaching its ruling the Court stated, “The Administrative Procedure Act mandates that Courts hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of direction, or otherwise not in accordance with law or in excess of statutory jurisdiction, authority, or limitations.”
This issue has been discussed on this site on several occasions in the past (see ICORE Blogs dated 5/10/24, 6/13/24, 8/9/24) and most recently in the 12/27/24 2024 Year in Review edition. The issue stems from the FCC’s April 25, 2024, Order which restored FCC regulation of BIAS as a telecommunications service under its Title II authority. The rules adopted in the Order would have prevented BIAS providers from blocking traffic, slowing down content, or creating pay to play internet fast lanes but did not impose rate regulation, tariffing, and unbundling requirements. In addition, the Order did not require BIAS providers to contribute to the FCC’s Universal Service Fund. The Order was met with significant opposition from interested parties and resulted in numerous petitions for a Stay of the Order being filed at the FCC and various U.S. Circuit Courts of Appeal culminating in a Stay of the Order by the U.S. Court of Appeals for the Sixth Circuit.
The January 2, 2025 ruling by the Sixth Circuit puts the issue to rest at least for the time being. BIAS has been determined to be an information service and the FCC’s attempt to reimpose Title II regulation has been set aside. The FCC could appeal the Sixth Circuit’s decision to the U.S. Supreme Court but that appears to be unlikely. In response to the Sixth Circuit’s ruling outgoing FCC Chairwoman Jessica Rosenworcel issued a statement calling on Congress to “take up the charge for net neutrality and put open internet principles in federal law.” Conversely, FCC Commissioner Brendan Carr who is incoming President Trump’s nominee to Chair the FCC, issued a statement reiterating his opposition to the Order and strongly supporting the Sixth Circuit’s ruling stating “I am pleased that the appellate court invalidated President Biden’s Internet power grab by striking down these unlawful Title II regulations.
