Court Orders ISPs, FCC to Argue Net Neutrality on Halloween

WASHINGTON, Aug 26, 2024 – Federal regulators now have a court date to try to inject new life into their impaired Internet competition rules. It’s Halloween. 

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati announced Monday that it will hear oral arguments in the Net Neutrality case on Oct. 31, 2024 at 8:30 a.m. ET.

The arguments will be live streamed but audio only, according to Sixth Circuit Clerk Kelly Stephens. The court has not disclosed the name of the judges who will hear the case on the merits. 

On April 25, the FCC voted along party lines to classify broadband ISPs as common carriers. ISPs immediately appealed after the rules were published in the Federal Register on May 22.

The FCC asserted broad authority over ISPs on a range of issues, including prohibitions on blocking or throttling lawful Internet content or accepting payment to prioritize traffic. ISPs were especially concerned about the FCC’s general conduct rule, which they viewed as a vehicle to regulate rates and restrict various pricing mechanisms.

FCC Chairwoman Jessica Rosenworcel said the rules were necessary to “ensure that broadband services are treated as an essential resource deserving of FCC oversight.”

On Aug. 1, a Sixth Circuit panel stayed the rules in a unanimous order, saying the ISPs were "likely to succeed on the merits." 

The three-judge panel – which included two appointed by Democratic presidents, including one by President Joe Biden -- said it was also likely that the FCC violated the Supreme Court's Major Questions Doctrine.

Under that judicial canon, the FCC is barred from resolving issues of vast political and economic significance without clear authorization from Congress. The ISPs have said Congress never handed power to the FCC to treat them as common carriers. 

"The Communications Act likely does not plainly authorize the [FCC] to resolve this signal question. Nowhere does Congress clearly grant the [FCC] the discretion to classify broadband providers as common carriers," the Sixth Circuit panel said. 

Rosenworcel, who has repeatedly predicted victory in the court based on past results, called the stay “a setback but we will not give up the fight for net neutrality.”