The Sixth Circuit Court of Appeals has struck down the Federal Communications Commission’s (FCC) net neutrality rule, the Safeguarding and Securing the Open Internet Order.

A panel of three Republican-appointed judges unanimously rejected the FCC’s claim that internet service providers (ISPs), are telecommunications services, but instead ruled that they should be properly classified as information services under the text of the Communications Act of 1934.

That undoes the FCC’s April 2024 Safeguarding and Securing the Open Internet Order, which designated ISPs as telecommunications providers under Title II of the Communications Act. Title II treats telecommunications providers as common carriers – providers of utilities that cannot discriminate based on user or endpoint.

Under previous Republican administrations, the FCC had regulated ISPs as Title I information services, which do not have such obligations.

While in effect, the FCC’s net neutrality order prevented internet service providers from speeding up or slowing down internet service due to demand. It also prevented ISPs from blocking user access to lawful content, or charging extra for faster access to certain parts of the internet.

Proponents of the policy argue that treating all websites equally creates an incentive for smaller sites to enter the marketplace and safeguard the free transmission of ideas and services.

Conversely, critics of net neutrality criticize government interference in private industry. They contend that ISPs know best how to manage their own networks and allocate resources, and that users dissatisfied with their service could choose other providers.

Neutrality unplugged

An order to classify ISPs as common carriers was first promulgated by the FCC under the Obama administration in 2015, reversed under Trump in 2017, and reinstated under Biden in 2024.

Now net neutrality has suffered a more durable reversal. Because a federal court ruled the FCC’s order inconsistent with the Communications Act, net neutrality will require legislation to be reinstated.

The decision joined a slate of recent opinions that cited Loper Bright, the landmark case that vitiated the long-lived Chevron doctrine of ceding deference to administrative agency decisions so long as they were reasonable.

“Applying Loper Bright means we can end the FCC’s vacillations,” the court stated.

Some commentators speculated that the court’s decision would involve the Major Questions Doctrine, which limits expansion of agency power into fields unconsidered by Congress. But the court’s final opinion stayed clear of wading into that issue, stating that the question could be adjudicated through statutory analysis alone.

Outgoing FCC chair Jessica Rosenworcel said that net neutrality’s future now lay with lawmakers.

“Consumers across the country have told us again and again that they want an internet that is fast, open, and fair. With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law,” she said.