Today, a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers’ request for a stay of enforcement of the Federal Communications Commission’s rules that subject broadband network providers to compliance with the Communications Act, commonly known as “net neutrality.” ”) is classified as a common operator. According to the panel, the broadband provider was likely to succeed on the merits – in part due to the material issues doctrine – which justified retaining the rule during the review of its application. The jury consisted of Chief Judge Sutton, Judge Clay and Judge Davis.
Broadband networks refer to a set of platforms that allow users to access the Internet at faster speeds than dial-up services. . . . More than three-quarters of Americans have access to high-speed broadband service. . . . In addition to renting or building physical networks to connect computers, broadband Internet providers also offer other services that allow subscribers to access content from “edge providers” – websites that host content on their own networks, such as Google and Netflix and Amazon. . . . These services include DNS (short for Domain Name Service), a “phone book” that matches a web address (for example, http://www.ca6.uscourts.gov) with its IP (Internet Protocol) address. They also include “caching” services that speed up data access by storing copies of edge provider content closer to users’ home systems. . . .
The Communications Act of 1934 covers broadband providers and gives the FCC the authority to promulgate rules and regulations under the Act. The scope of this regulatory authority depends on whether the provider counts as a common carrier under the Act. If a business is considered a common carrier, it must comply with Title II of the Act, which includes rate review provisions and non-discrimination obligations. . . . For other businesses, the Commission can only impose subsidiary regulations authorized by Title I, which generally preserve a company’s ability to respond to market conditions. . . .
The growth of the Internet has created classification challenges for the Commission. When Congress first enacted this law in 1934, it defined a common carrier to include anyone participating in “wire communications.” . . . Think of the telephone companies and the monopolies that came with them. But by the 1970s, telephone companies and other companies began competing to provide data processing services over telephone lines. . . . The Commission is aware that common carrier rules designed for telephone line monopolies may inhibit the development of “data information services.” . . . The Commission responded by distinguishing between “basic transmission services” that transmit data between two points and “enhanced services” that allow subscribers to interact with data stored elsewhere.
In response to these developments, Congress enacted the Telecommunications Act of 1996. It establishes a new category of “telecommunications services” that provide “the transmission of information selected by the user between points specified by the user without altering the form or content of the messages sent and received. … The Commission must classify telecommunications services as Suppliers are considered public operators… The 1996 Act also creates a new category of “information services” that apply to “the production, acquisition, storage, transformation, processing, retrieval, utilization or provision of information by means of telecommunications”. ability” company. The Commission shall not treat information service providers as common operators. . . .
After the passage of the 1996 Act, the Committee has for many years believed that broadband network access services are information services, not telecommunications services. This frees them from Title II common carrier requirements. . . .
Supreme Court upholds classification after reviewing Ninth Circuit ruling Chevron. [See Brand X]. . . Specifically, the Supreme Court held that classifying broadband network access provided through cable modems as information services is a permissible interpretation of the Communications Act. . . .
In 2010, the Commission continued to treat broadband network services as covered by Title I, but chose to change its rules based on arguments that broadband providers might risk favoring content from certain edge providers over others . . . . The commission seeks to use its Chapter 1 powers to impose “open internet” rules on broadband providers, prohibiting them from blocking or unreasonably discriminating against lawful content. . . . A federal court invalidated the rule on the grounds that the Commission could only impose such requirements under Title II.
The next chapter begins in 2015. . . .
In 2018, the Commission reverted to its previous view. It issued a new rule stating that broadband providers fall under Chapter 1 and do not qualify as public operators. . . . DC circuits again maintain classification and do so again Chevron. . . .
On May 22, 2024, the committee changed its position again. Under current rules, the Commission has classified broadband providers as common operators under Chapter 2. . . . The rules require broadband providers to disclose “accurate information about network management practices” and prohibit them from blocking, throttling, pay prioritization and “unreasonable interference” with users and edge providers. . . . The rules at this time prohibit other Title II provisions, including rate regulation and tariffs. . . .
The petitioners will likely prevail on the merits because the final rule addresses a significant issue and the Commission failed to meet the high standards for implementing such a provision. Although the petitioners raised other arguments in support of their position that the FCC exceeded its authority when it promulgated rules regarding, for example, whether broadband could be classified as a telecommunications service under the Communications Act and the effects of broadband compliance decisions. BrandX We decline to reach these arguments at this preliminary stage.
Agencies can issue regulations only to the extent Congress permits. . . . When Congress delegates its legislative power to an agency, it may address “significant questions” of policy itself, while empowering the agency to decide only those “interstitial matters” that arise in day-to-day practice. . . When Congress overturns this presumption and delegates to an agency its authority to “change the fundamental details of a regulatory program,” it must say so clearly, not “hide it.”[ing] Simply put, the more an agency requires of regulations, the more it must express in regulations to support its rule.
Net neutrality may be a major issue that requires an explicit mandate from Congress. As the Commission rule itself explains, broadband service is “absolutely essential to modern life, promoting employment, education, health care, commerce, community building, communications and free speech,” not to mention broadband’s importance to national security and public safety .
Congress and state legislatures have debated for decades whether and how to require net neutrality. The rule is a major issue because it decides an issue of “huge economic and political significance.” . . . The Communications Act may not expressly authorize the Commission to address this signaling issue. Congress did not expressly grant the Commission discretion to classify broadband providers as common carriers. Instead, Congress has specially mandated committees to define certain categories of communications services, but never to do so with respect to specific broadband providers or the broader network. . . . Without a clear mandate to treat broadband as a public carrier, we cannot assume
Congress granted the Commission this broad authority, and petitioners thereby demonstrated that they were likely to succeed on the merits. . . .
Chief Judge Sutton also wrote a separate concurrence emphasizing that the FCC could fail even without the material issues doctrine. As Sutton points out, “The best reading of the statute, and of all but three of the statutes in the past twenty-eight years, suggests that Congress may not view broadband providers as covered by the Telecommunications Act.” Common operators under Chapter 2.
