GOP-Leaning Sixth Circuit to Hear Net Neutrality Case

The Sixth Circuit was selected by lottery because national and state trade groups had filed identical appeals in four other circuits.

GOP-Leaning Sixth Circuit to Hear Net Neutrality Case
Illustration from Wired

WASHINGTON, June 6, 2024 – A federal appeals court in Cincinnati packed with Republican appointees will hear the case challenging the Federal Communications Commission’s new Net Neutrality rules.

The U.S. Court of Appeals for the Sixth Circuit was selected by lottery because national and state Internet Service Provider trade groups had filed identical appeals in four other circuits, according to news reports and industry sources.

Last Friday, USTelecom, NCTA, CTIA, ACA Connects, joined by a few state associations, asked the FCC to stay the rules while the courts had Net Neutrality under review. They asked the FCC to decide by June 7.

“We will respond to that petition, but I have full confidence in the work that this agency has developed with respect to Net Neutrality and I believe our work will be upheld by the courts,” FCC Chairwoman Jessica Rosenworcel said at a press conference Thursday.

Because the FCC is unlikely to grant the stay, the ISP trade associations strongly suggested they will seek a judicial stay, perhaps as soon as Friday. That request will also go to the Sixth Circuit, an industry source said.

The FCC’s Net Neutrality rules go into effect July 22 if not stayed.

With its strong Republican profile, the Sixth Circuit appears to be a favorable venue for the ISPs. Nevertheless, a Sixth Circuit panel last May ruled against Consumers’ Research in that group’s effort to have the FCC’s $8.1 billion Universal Service Fund declared unconstitutional, a dispute still active in the Fifth Circuit.

According to its website, the Sixth Circuit has 29 judges but only 10 have been appointed by Democratic Presidents – five by Bill Clinton, two by Barack Obama and three by Joe Biden. The others were all appointed by Republicans, including one by Ronald Reagan in 1985.

Nevertheless, 13 Sixth Circuit judges have taken senior status, making it unclear how many of them are still hearing cases. Nine judges appointed by Republicans and four by Democrats have taken senior status. Among the judges still active, 10 were appointed by Republicans and six by Democrats.

“I believe that should this go to court some day in the future, all of our work will be upheld,” said Rosenworcel, speaking to reporters after the agency’s open meeting but before the Sixth Circuit news broke.

Rosenworcel is sounding confident because the FCC’s 2015 Net Neutrality rules were upheld by the D.C. Circuit and the agency’s authority to classify broadband was affirmed by the Supreme Court in the 2005 Brand X decision.

Since those decisions, however, the Supreme Court has embraced the Major Questions Doctrine, a judicial canon enunciated in 2022 that requires an agency like the FCC to have clear authorization from Congress to adopt rules of vast economic and political significance.

The ISPs, in an opinion shared by Republican FCC Commissioner Brendan Carr, have maintained that Congress never authorized Net Neutrality and should be reversed under the Major Questions Doctrine.

Asked to comment on the doctrine, Rosenworcel would only say: “I have full confidence that what we have produced is consistent with outstanding opinions in the D.C. Circuit and the Supreme Court.”

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