The future of the open Internet is in jeopardy on October 31, not from ghosts and goblins, but from the broadband companies that control Internet access in most of the United States.
These companies would like to use their oligopolistic power to charge users and websites extra fees for “premium” Internet access, which they can create by artificially limiting certain connections and prioritizing others. Thanks to public pressure and a coalition of public interest groups, the Federal Communications Commission (FCC) has banned such paid prioritization and throttling, as well as outright blocking of websites. These net neutrality protections ensure that ISPs treat all data traveling across their networks fairly, without inappropriate discrimination in favor of particular apps, sites, or services.
But the temptation to make more money without investing in better service or infrastructure is hard to resist for broadband services like Comcast and AT&T. So the big telecom companies have challenged the FCC’s rules in court – and their case has now made its way to the Sixth Circuit Court of Appeals.
A similar challenge was decisively rejected by the D.C. Circuit Court of Appeals in 2016. Unfortunately, the FCC, under a new chairman, rescinded these hard-won rules in 2017 – despite intense opposition from nonprofits, artists, tech companies large and small, libraries, and millions of ordinary internet users. A few years later, the FCC membership changed again and the new FCC restored net neutrality protections. As everyone expected, Team Telecom ran back to court, leading to this appeal.
However, a few things have changed since 2017, and none of them are good for Team Internet. To begin with, the case will be heard in the Sixth Circuit, which is not bound by the previous reasoning of the DC Circuit, and which has already expressed its sympathy for Team Telecom in a preliminary ruling.
And of course, the composition of the Supreme Court has changed dramatically. Notably, Judge Kavanaugh disagreed with the D.C. Circuit majority when it reviewed the 2015 order — a dissent that clearly influenced the Sixth Circuit’s initial ruling in the case. That influence could well be felt when this case inevitably makes its way to the Supreme Court.
The central legal questions are: 1) what did Congress mean when it directed the FCC to regulate “telecommunications services” differently from “information services,” and 2) what category broadband falls into. This matters because the rules we need to preserve the open Internet – such as prohibiting discrimination against certain applications – require the FCC to treat access providers as “common carriers,” a treatment that can only be applied to telecommunications services. If the FCC must define broadband as an “information service,” it can impose rules that “promote competition” (good), but it cannot do much to prohibit paid prioritization, throttling, or blocking (bad).
The answers to these questions will likely depend on whether the Sixth Circuit thinks the regulation of the Internet is an “important question,” meaning whether it is a question of “tremendous economic or political significance.” If so, the Supreme Court has said that agencies can only address this if Congress has clearly authorized them to do so.
The “big questions doctrine” is on the rise thanks to a Supreme Court majority deeply skeptical of the so-called administrative state. In recent years, the majority has used it to reject multi-agency actions such as the CDC’s temporary moratorium on evictions in areas hit hard by Covid.
Equally important, the Supreme Court recently changed the rules on whether and how courts must adhere to plausible interpretations of the statutes under which they operate. In the case of Runner Bright Enterprises against Raimondothe Court ended an era of judicial deference to agency decisions. Rather than allowing agencies to act on the agencies’ own plausible determinations about the scope and meaning of the powers granted to them by Congress, courts are now instructed to reach those decisions on their own.
Ironically, in 2003, under the old deference rule, the Ninth Circuit independently concluded that broadband was a telecommunications service – the simplest and correct reading of the statute and the one that provides a solid legal basis for the protection of net neutrality. In fact, the court said it would have been wrong for the FCC to have said otherwise. But the FCC and the telecom industry successfully argued that the courts should defer to the FCC’s contrary reading, and prevailed at the Supreme Court based on the doctrine of judicial deference that Runner Clear has now been drowned out.
By joining these legal threads, Team Telecom argues that the FCC can’t classify current broadband offerings as a telecommunications service, even though that is the best reading of the statute, because that classification is an “important issue” that only Congress can decide. Team Internet argues that Congress clearly delegated this decision-making authority to the FCC, which is one reason the Supreme Court didn’t treat the issue as an “important question” the last time it looked at it. Team Telecom also states that after the Runner Clear decision, the court need not defer to the FCC’s interpretation of its own authority. Team Internet explains that the FCC’s interpretation this time reflects the best understanding of the statute and the facts.
EFF supports Team Internet and the court should do the same. It will likely make a decision in the first half of 2025, so the specter of uncertainty will haunt us for a while. Even if the panel issues an opinion, the losing party will be able to request that the full Sixth Circuit rehear the case, and then the Supreme Court would be the case’s next and final resting place.
