Advocates For Net Neutrality Appeal 6th Circuit Court Decision That FCC Won't

WASHINGTON, Feb. 18, 2025 – Consumer advocates are asking the Sixth Circuit to revisit its recent decision striking down net neutrality rules – even if the FCC almost certainly won’t.

A three-judge panel found last month that the Federal Communications Commission could not classify ISPs as Title II common carriers under the Telecommunications Act, ruling that the “best reading” of the statute required broadband be defined as a less-regulated information service. 

That new “best reading” test came about because of the Supreme Court’s decision in Loper Bright v. Raimondo in 2024, which overturned the Chevron doctrine, or the practice of judges deferring to expert agencies if laws were ambiguous.

The Sixth Circuit’s decision on January 2, 2025, was a big win for broadband trade groups that challenged the rules, also fearing they would have opened the door to a host of more stringent FCC regulations.

Now, advocates for net neutrality have only the non-profit groups to rely on. The FCC, under new management since the inauguration of President Donald Trump, is seen as unlikely to appeal a decision that it now supports, and a Republican-controlled Congress is similarly unlikely to institute a net neutrality-like framework through legislation. 

Previously, however, the non-profit interveners in the case were the FCC’s behalf. They filed a petition for rehearing Tuesday, asking a full panel of judges to review the decision by the court’s three-judge panel.

“When it reversed the Chevron precedent that gave broad discretion to regulatory agencies, the Supreme Court instructed lower courts to interpret the law according to its plain meaning, applying ordinary tools of statutory construction,” John Bergmayer, legal director at Public Knowledge, said in a statement. “Instead of doing this, the Sixth Circuit panel shoehorned its policy preferences into the law, in a slapdash and inconsistent opinion that, if left unchallenged, will eliminate the ability of future regulators to promote universal, affordable competitive broadband access, and could even threaten the openness of the telephone network itself.”

FCC Chairman Brendan Carr is a staunch opponent of net neutrality. He said when the ruling came down he was “pleased that the appellate court invalidated President Biden’s Internet power grab by striking down these unlawful Title II regulations.”

The policy is often described as a game of political ping-pong: it was enacted in 2015 under the Obama administration, repealed under the first Trump administration two years later, and finally reinstated last year.

As they did during oral arguments, the intervenors argued in their brief that broadband fit more comfortably in the Telecom Act’s definition of a Title II telecommunications service – something that offers the pure transmission of data – rather than an information service – something that allows users to access and interact with information.

Judges had said that since an internet connection allowed users to access information, that put broadband in the information service camp. The intervenors said that would be broad enough to classify phone lines – the classic example of a telecom service –  in the same way, since people could make reservations or use dial-up services like AOL.

“That a phone line in 1996 could be used to retrieve and interact with information on AOL in the same ways users use [broadband] to interact with information on the internet today – e.g., to send emails, join chat groups, or search an on-line encyclopedia, – did not convert the common-carriage phone service into an information service,” the groups wrote.