The US Court of Appeals for the Sixth Circuit ruled Jan. 2 that the Federal Communications Commission (FCC) did not have legal authority when it reinstated net neutrality rules last May, striking a blow to President Joe Biden's telecommunications policy. Net neutrality is the idea that internet service providers (ISPs) must provide access to all content without favoring or blocking particular websites or services. In May, the FCC voted to classify ISPs as "telecommunications services" as opposed to "information services," thereby subjecting them to net neutrality rules. Several telecommunications companies challenged the decision.

The court found that ISPs are information services and thus net neutrality rules do not apply. In doing so, it applied the US Supreme Court's decision in Loper Bright Enterprises v. Raimondo Secretary of Commerce, which abolished the deference afforded to administrative bodies in interpreting their enabling statutes. The court went on to find that the FCC's classification of ISPs as telecommunications services was wrong:

A provider need only offer the "capability" of manipulating information to offer an "information service" under. Even under the FCC’s narrower interpretation of "capability," Broadband Internet Access Providers allow users, at minimum, to "retrieve" information stored elsewhere. And we think it equally plain, for the reasons recited below, that Broadband Internet Service Providers offer at least that capability.

This ruling is the latest in a long line of dispute over net neutrality. In 2014, the US Court of Appeals of the District of Columbia Circuit struck down FCC rules requiring net neutrality. The FCC implemented new rules in 2015. Courts upheld the new rules that year, but they were repealed by the FCC in 2017 during the first Trump presidency. The May 2024 decision by the FCC effectively reinstated the 2015 net neutrality rules.

Many have criticized the court's decision. For example, Rep. Ro Khanna (D-CA) worries over the possibility that ISPs "could throttle or block news sites based on the political views of their investors and corporate CEOs." On the other hand, Ajit Pai, the FCC commissioner responsible for repealing net neutrality in 2017, lauded the decision, calling net neutrality "unlawful" and "pointless."

From JURIST, an. 3. Used with permission.

See our last reports on the struggle for net neutraity, and Loper Bright Enterprises v. Raimondo.