On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit struck down the Federal Communications Commission (FCC)'s 2024 Safeguarding and Securing the Open Internet Order in Ohio Telecom Association v. Federal Communications Commission, possibly bringing an end to a nearly 20-year fight over federal net neutrality regulations.
Net neutrality is the principle that broadband Internet should be considered a public utility and Internet service providers (ISPs) should treat all data, traffic, and users on the Internet equally, which advocates have argued since the late 2000s promotes an open and accessible Internet. Without these safeguards, ISPs could charge more for priority access, grant or withhold access to certain exclusive "fast lanes," or block access entirely for certain content, websites, applications, or services, creating a "tiered" Internet that affords an unfair advantage to businesses and consumers who can afford to pay, in the most nefarious cases to stifle competition and even free speech online. Hypothetically, a telecom conglomerate that owns and operates both an ISP (perhaps as the only broadband Internet provider in a given market) and an over-the-top streaming platform could give its own streaming service a boost by turbocharging speeds while making it irritatingly slow for its millions of Internet subscribers to stream content on competing platforms. Imagine pay-to-play deals by companies with nearly unlimited resources, such as an online retailer paying a premium to ensure its website loads faster than its competitors' websites or a technology company striking a deal to make its smart speakers' response time quicker than any other smart speaker on the market. It's not far-fetched to think that an ISP might bury search results about its own failure to deliver Internet speeds to its subscribers as advertised or that a billionaire entrepreneur may direct its privately held ISP to limit subscribers from accessing editorial content critical of a political ally that would otherwise be protected by the First Amendment.
Conversely, opponents argue that net neutrality is precisely what would stifle competition by disincentivizing ISPs to invest in network infrastructure improvements or expansion and by constricting the free market from guiding how ISPs offer service at various levels and price points at which consumers would have freedom to choose. They might rebuff the examples posed above by suggesting that businesses and consumers who elect to pay a premium for lightning-fast speeds may ultimately subsidize the cost of expanding high-speed Internet into digital deserts that are otherwise loss-leaders for ISPs, or the tech giant that pays a premium for its website to load even quicker and with fewer delays would obtain a competitive edge comparable to paying for search engine optimization (SEO) to appear as the first several search results. Net neutrality critics point to existing antitrust and unfair competition laws (among others), consumer behavior and expectations, and public pressure all as backstops for the doom and gloom hypotheticals conjured by net neutrality alarmists.
The FCC under President Obama adopted the first major net neutrality regulation called Protecting and Promoting the Open Internet (colloquially, the "Open Internet Order") which the FCC during President Trump's first term effectively repealed in 2018 under the Restoring Internet Freedom rule. In 2024, the Biden-era FCC adopted the Safeguarding and Securing the Open Internet rule (the "Safeguarding Order") to restore the Open Internet Order's net neutrality regulations by reclassifying broadband Internet as a "telecommunications service" under Title II of the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), making ISPs "common carriers" subject to stricter regulations for non-discriminatory access and oversight on pricing and service quality. The new Safeguarding Order specifically prohibited ISPs from blocking, impairing, or downgrading traffic based on lawful content, websites, applications, services, or non-harmful devices except for reasonable network management and from favoring certain Internet traffic over other traffic through traffic shaping, prioritization, resource reservation, or other preferential traffic management in exchange for a fee or other benefit.
Several ISPs and other interested parties filed petitions challenging the Safeguarding Order across the country and the Judicial Panel on Multidistrict Litigation chose the Sixth Circuit to hear the consolidated matters as Ohio Telecom Association v. Federal Communications Commission (also referred to as In re MCP No. 185: FCC and In re Safeguarding and Securing the Open Internet). The three-judge panel—all of whom were nominated to the bench by Republican presidents—of the Sixth Circuit ultimately ruled that the FCC incorrectly classified ISPs as telecommunications service providers, rather than non-common carrier providers of "information services," and therefore exceeded its authority in imposing the net neutrality regulations. The Court determined that, in providing the public with Internet access, ISPs are more than mere conduits for data transmission (i.e., a telecommunications service) as the FCC had posited in the Safeguarding Order. Instead, ISPs offer consumers the capacity to generate, acquire, store, transform, process, retrieve, utilize, and make available information and data as an information service via telecommunications services. The Court emphasized Congress' legislative intent when enacting Communications Decency Act (CDA) Section 230 as part of the Telecommunications Act, which states that "[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation" and it should be public policy "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." The Court also referenced the long legal and regulatory history of treating information services (and the largely analogous "interactive computer services" under CDA §230) distinctly from common carriers or telecommunication services. In short, the FCC lacked the authority to impose net neutrality rules on ISPs under the Safeguarding Order, and those rules are no longer in effect.
So what's next for net neutrality? Likely very little, at least continuing in its form as an FCC regulation. The FCC may appeal the Sixth Circuit's ruling to the Supreme Court, but there's no telling if the case will resolve any differently, or even if certiorari will be granted at all, given the conservative-leaning High Court. One would expect the incoming Trump administration to remain consistent in its anti-regulatory agenda and hostile to net neutrality, as was the case under the Restoring Internet Freedom Order. FCC Commissioner Brendan Carr, whom President Trump intends to appoint as Chair, has been a vocal opponent of net neutrality and praised the Sixth Circuit's ruling in this case as "a good win." However, this ruling does not affect the numerous net neutrality laws and regulations at the State level, including in California, Colorado, and Washington, which remain in effect. The Sixth Circuit unequivocally put the ball in Congress' court—and not within the purview of the FCC's current rulemaking authority—to enact federal legislation on net neutrality, which perhaps will appear within the larger context of "big tech" reform that's become a bipartisan campaign pledge in recent election cycles.
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