A federal appeals court on Thursday dealt a blow to President Biden’s Federal Communications Commission, striking down open internet rules that the agency had hotly debated for years.
The FCC sought to reinstate comprehensive policies established under President Obama that aimed to treat internet service as an essential public service, similar to water and electric utilities.
Under so-called net neutrality rules, internet service providers would have been subject to greater regulation. A Republican-led commission repealed the rule in 2017 during President-elect Donald Trump’s first term.
Early last year, the FCC, then back under Democratic control, voted to formalize national standards for internet service to prevent blocking or delaying information delivered over broadband internet lines. A core principle of the open internet meant that internet service providers could not differentiate between content suppliers.
The order would also have strengthened the FCC’s oversight of requiring internet providers to respond to outages and security breaches involving consumer data. Citing national security as a reason, the FCC said the commission’s oversight is needed to effectively crack down on foreign companies deemed to pose a national security threat.
But on Thursday, the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled that the five-member panel did not have the authority to reclassify broadband internet as a telecommunications service. The decision would dismantle one of Biden’s major technology initiatives.
In its decision, the Sixth Circuit called the FCC’s net neutrality order a “heavy-handed regulatory regime.”
The court said recent U.S. Supreme Court decisions have removed the judicial framework that allowed courts to interpret rules with deference to the federal agencies that established them. The Sixth Circuit said the FCC lacked legal authority to change the classification of broadband internet as a telecommunications service. That role lies with Congress.
The lawsuit was filed by the Ohio Telecommunications Association, a trade group representing Internet service providers.
FCC Chairwoman Jessica Rosenworcel, a longtime advocate of net neutrality rules, called on lawmakers to do their part following the court’s ruling. She spearheaded the push to reinstate net neutrality rules during her tenure leading the agency, leading a 3-2 vote to reinstate net neutrality rules on a party-line vote last year.
“Consumers across the country have told us time and time again that they want a fast, open, and fair internet,” Rosenworcel said in a statement. “This decision makes clear that Congress needs to heed their call, advocate for net neutrality, and enshrine open internet principles in federal law.”
FCC Chairwoman Jessica Rosenworcel spoke at a Senate committee hearing to investigate the FCC in 2020.
(Jonathan Newton/Pool Photography)
The regulatory environment has changed dramatically in recent years and is expected to change again once President Trump returns to the White House. Brendan Carr, President Trump’s pick to lead the FCC, wrote a chapter on the FCC in his conservative policy blueprint, Project 2025. Companies are hoping the committee under Kerr will be more pro-business.
“President Biden’s entire plan was based on the Chicken Little tactic of convincing the American people that the internet would collapse without so-called ‘net neutrality’ regulations,” Carr said in a statement. “The American people have now seen through the ruse.”
The debate over net neutrality centers on the extent to which the FCC can regulate broadband Internet service providers, based on the authority it received from Congress in the landmark 1934 Communications Act and the 1996 Telecommunications Act. It was on.
“We believe that broadband Internet service providers provide only “information services”…Therefore, the FCC requires legislation to impose desirable net neutrality policies through the “telecommunications services” provisions of the Communications Act. ” Judge Richard Alan Griffin of the Sixth Circuit Court of Appeals wrote in a 26-page decision.
Consumer groups, which have campaigned for net neutrality regulations for more than a decade, lamented the decision.
“Today’s decision represents a major setback for consumers, competition, and the open internet,” Public Knowledge legal director John Bergmeyer said in a statement.
“In denying the FCC’s authority to classify broadband as a telecommunications service, the court ignored decades of precedent and fundamentally undermined both the technical realities of how broadband works and the clear intent of Congress in the Communications Act. I must have misunderstood.”
Net neutrality has been a seesaw battle for more than 15 years.
In the early days of broadband adoption, major companies lined up in opposing camps. Google, Netflix and other technology companies joined with consumer groups calling for net neutrality rules to level the playing field with Internet service providers such as AT&T, Verizon, Comcast Corp. and Charter Communications.
Net neutrality advocates had hoped that these providers would be regulated under Title II of the landmark Communications Act. That would have given the FCC a greater enforcement role.
“Remember, the market’s initial concerns about Title II reclassification had nothing to do with net neutrality,” cable analyst Craig Moffett said in a note to investors. Instead, telecom investors were concerned that such a reshuffle would open the door to “broadband price regulation,” Moffett wrote.
But that didn’t happen.
“That risk has now been eliminated,” Moffett wrote.