The future of the open internet is in danger this October 31st, not from ghosts and goblins, but from the broadband companies that control internet access in most of the United States.
These companies would love to use their oligopoly power to charge users and websites additional fees for “premium” internet access, which they can create by artificially throttling some connections and prioritizing others. Thanks to public pressure and a coalition of public interest groups, the Federal Communications Commission (FCC) has forbidden such paid prioritization and throttling, as well as outright blocking of websites. These net neutrality protections ensure that ISPs treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services.
But the lure of making more money without investing in better service or infrastructure is hard for broadband services like Comcast and AT&T to resist. So the big telecom companies have challenged the FCC’s rules in court—and their case has now made its way to the Sixth Circuit Court of Appeals.
A similar challenge was soundly rejected by the D.C. Circuit Court of Appeals in 2016. Unfortunately the FCC, led by a new Chair, repealed those hard-won rules in 2017—despite intense resistance from nonprofits, artists, tech companies large and small, libraries, and millions of regular internet users. A few years later, FCC membership changed again, and the new FCC restored net neutrality protections. As everyone expected, Team Telecom ran back to court, leading to this appeal.
A few things have changed since 2017, however, and none of them good for Team Internet. For one thing, the case is being heard in the Sixth Circuit, which is not bound by the D.C. Circuit’s earlier reasoning, and which has already signaled its sympathy for Team Telecom in a preliminary ruling.
And, of course, the makeup of the Supreme Court has changed dramatically. Justice Kavanaugh, in particular, dissented from the D.C. Circuit majority when it reviewed the 2015 order—a dissent that clearly influenced the Sixth Circuit’s initial ruling in the case. That influence may well be felt when this case inevitably makes its way to the Supreme Court.
The central legal questions are: 1) what did Congress mean when it directed the FCC to regulate “telecommunications services” differently from “information services,” and 2) into which category does broadband fall. This matters because the rules that we need to preserve the open internet — such as forbidding discrimination against certain applications — require the FCC to treat access providers like “common carriers,” treatment that can only be applied to telecommunications services. If the FCC has to define broadband as an “information service,” it can impose regulations that “promote competition” (good) but it cannot do much to forbid paid prioritization, throttling or blocking (bad).
The answers to those questions will likely depend on whether the Sixth Circuit thinks regulation of the internet is a “major question,” meaning whether it is an issue has “vast economic or political significance.” If so, the Supreme Court has said that agencies can only address it if Congress has clearly authorized them to do so.
The “major questions doctrine” is on the rise thanks to a Supreme Court majority that is deeply skeptical of the so-called administrative state. In the past few years, the majority has used it to reject multiple agency actions, such as the CDC’s temporary moratorium on evictions in areas hard-hit by Covid.
Equally importantly, the Supreme Court recently changed the rules on whether and how court should defer to plausible agency interpretations of the statutes under which they operate. In the case of Loper Bright Enterprises v. Raimondo, the Court ended an era of judicial deference to agency determinations. Rather than allowing agencies to act according to the agencies’ own plausible determinations about the scope and meaning of the authorities granted to them by Congress, courts are now instructed to reach those determinations independently.
Ironically, under the old rule of deference, in 2003 the Ninth Circuit independently concluded that broadband was a telecommunications service – the most straightforward and correct reading of the statute and the one that provides a sound legal basis for net neutrality protections. In fact, the court said it had been erroneous for the FCC to say otherwise. But the FCC and telecoms successfully argued that the courts should defer to the FCC’s contrary reading, and won at the Supreme Court based on the doctrine of judicial deference that Loper Bright has now overruled.
Putting these legal threads together, Team Telecom is arguing that the FCC cannot classify current broadband offerings as a telecommunications service, even though that’s the best reading of the statute, because that classification is be a “major question” that only Congress can decide. Team Internet argues that Congress clearly delegated that decision-making power to the FCC, which is one reason the Supreme Court did not treat the issue as a “major question” the last time it looked at the issue. Team Telecom also argues that, after the Loper Bright decision, the court need not defer to the FCC’s interpretation of its own authority. Team Internet explains that, this time, the FCC’s interpretation aligns with the best understanding of the statute and the facts.
EFF stands with Team Internet and so should the court. It will likely issue a decision in the first half of 2025, so the specter of uncertainty will be with us for some time. Even when the panel issues an opinion, the losing side will be able to request that the full Sixth Circuit rehear the case, and then the Supreme Court would be the next and final resting place of the matter.
