Court Sets Aside FCC's New Title II Order

On January 2, the U.S. Court of Appeals for the Sixth Circuit issued a decision on the merits in MCP No. 185. The three-judge panel's decision set aside the FCC's 2024 Securing and Safeguarding the Open Internet Order. The court wrote:   

Using "the traditional tools of statutory construction," id., we hold that Broadband Internet Service Providers offer only an "information service" under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the "telecommunications service" provision of the Communications Act, id. § 153(51).

The Sixth Circuit's decision in MCP No. 185 presents a straightforward reading of the Communications Act. It thus reaches a relatively easy conclusion that broadband Internet access services are best understood as fitting the definition of lightly regulated "information services" under Title I of the Act. This decision is welcome because it means that innovative broadband networks will remain free from unjustifiable public utility regulation that Congress never authorized. 

The Sixth Circuit's opinion is refreshing because it shows how the traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband. It's the type of decision that eluded us so long as lower courts were subject to the "Chevron doctrine" and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions. 

The Sixth Circuit's commendable decision was made possible by the Supreme Court's overruling of the "Chevron doctrine" in its 2025 Loper Bright Enterprises v. Raimondo decision, which signaled a return to principles of judicial review based on the best reading of statutes rather than elastic deference to regulatory agencies. 

 

The August 2024 stay order issued by a different Sixth Circuit panel in an earlier stage of the litigation presented a persuasive analysis that the FCC's order is contrary to the Supreme Court's Major Questions Doctrine. However, the merits panel's decision that was issued on January 2 rightly takes a first-things-first approach by concluding the FCC's order exceeded the terms of the Communication Act. Recourse to the Major Questions Doctrine is unnecessary to reach that conclusion. 

 

P.S. In December 2023, the Free State Foundation filed public comments with the FCC opposing the agency's proposed Title II reclassification decision. And in January 2024, the Free State Foundation filed reply comments in the Commission's Securing and Safeguarding the Open Internet proceeding. Those comments and reply comments predated the Supreme Court's decision in Loper Bright. For a defense of the Loper Bright decision, see FSF President Randolph May's July 2024 Perspectives from FSF Scholars, "Chevron's Demise Re-Aligns Administrative State With Founders' Vision."

Oral Arguments on FCC's New Title II Order Set for End of October

According to news reports, the U.S. Court of Appeals for the Sixth Circuit has scheduled October 31, 2024, as the date for oral arguments on the merits in the pending legal challenge to the FCC's Safeguarding and Securing the Open Internet Order. It is reported that live-streaming audio of the arguments will be available to the public. 

The Commission's order changed the classification of broadband Internet access services from a lightly regulated "information service" under Title I of the Communications Act to a more heavily regulated common carrier "telecommunications service" under Title II. Lawsuits challenging the new Title II order have been consolidated before the Sixth Circuit. 

 

In an August 23 Perspectives from FSF Scholars, "The Sixth Circuit Stays the FCC’s Latest Net Neutrality Flip-Flop," Free State Foundation President Randolph May reviewed the court's per curiam order released August 1. That court order stays the Commission's order, pending a decision by the merits panel assigned to the case. FSF President May briefly analyzes the major questions doctrine (MQD) rationale for the court's stay order and Chief Judge Jeffrey Sutton's concurring opinion that addresses the best reading of the Communications Act. Both issues can be expected to receive more extensive judicial analysis by the Sixth Circuit's merits panel. 

 

For more on the new Title II Order and the MQD, see my April 2024 Perspectives from FSF Scholars, "The FCC's Internet Regulation Plan Fails the Major Questions Doctrine."

Joint Resolution in Senate Would Repeal FCC's New Title II Order

On July 23, Senator Marsha Blackburn introduced S.J.Res. 103, a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. Senators Ted Cruz and John Thune are co-sponsors. S.J.Res. 103 was referred to the Senate Commerce, Science, and Transportation Committee. By a 3-2 vote in April of this year, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation.

Earlier this year – as described in a May 28 blog post – Rep. Bob Latta introduced in the 118th Congress H.J.Res. 153, a similar CRA joint resolution of disapproval.

 

Under the CRA, there is a fast-track process for Congress to vote on the repeal of new agency regulations. Helpful background information on the CRA, in the context of broadband regulatory policy, is contained in FSF Board of Academic Advisors Member Daniel Lyons' June 2018 Perspectives from FSF Scholars, "The Congressional Review Act and the Toxic Politics of Net Neutrality."

 

Many Perspectives from FSF Scholars papers have been published critiquing the new Title II order's imposition of public utility restrictions on broadband Internet networks. These include my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation" and my April 22 Perspectives, "Public Safety Rebrand Won't Save the FCC's Internet Regulation Plan From Unlawfulness." The most serious legal defect in the Commission's new Title II order comes under fire in my April 12 Perspectives, "The FCC's Internet Regulation Plan Fails the Major Questions Doctrine." 

Joint Resolution in House Would Repeal FCC's New Title II Order

On May 23, Rep. Bob Latta announced that he had introduced a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. By a 3-2 vote, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation. 

Rep. Latta deserves credit for introducing this CRA joint resolution. The House of Representatives should give the legislation due consideration. 

 

The CRA provides a fast-track process for Congress to repeal new agency regulations. For helpful background on the CRA in the context of broadband regulatory policy, see FSF Board of Academic Advisors' Member Daniel Lyons' June 2018 Perspectives from FSF Scholars, "The Congressional Review Act and the Toxic Politics of Net Neutrality."

 

The Free State Foundation filed public comments and reply comments with the FCC in opposition to public utility regulation. Several Perspectives from FSF Scholars have been published critiquing the imposition of public utility restrictions on broadband Internet networks," including my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation."