The FCC and the broadband industry debate the future of net neutrality.
Yes, this is still happening.
The lawyers for the Federal Communications Commission (FCC) and representatives from the broadband industry engaged in a heated discussion about the future of net neutrality before a panel of judges in an appeals court. This hearing is part of an ongoing political debate regarding net neutrality regulations, which reclassify internet service providers (ISPs) as common carriers, preventing them from selectively limiting web traffic.
Net neutrality rules were established during the Barack Obama administration, repealed by his successor Donald Trump, and reinstated under Joe Biden's FCC in April. However, this latest version has not progressed much, as the Sixth Circuit Court of Appeals suspended the rules while it considers the case. During the arguments presented, two judges appointed by George W. Bush and one by Trump questioned both sides about the complex interpretations of what constitutes a "telecommunications service."
The central issue is whether the FCC still has the authority to enforce rules like net neutrality, following two Supreme Court rulings that weakened regulators' capabilities. The hearing placed special emphasis on the importance of the "major questions doctrine," which indicates that Congress must explicitly grant agencies the power to make certain decisions. Additionally, discussions included the conclusion of the principle known as Chevron deference, which required judges to respect agencies' expertise. In a post-Chevron context, courts have more freedom to decide whether a policy like net neutrality should exist.
Jeffrey Wall, representing the broadband industry, argued that the FCC's rules were an overreach of power that exceeded its authority. Wall expressed, "This agency is eager to use its other Title II [common carrier] powers unlocked here to regulate all sorts of things about ISPs: what type of plans they offer you, at what cost." He asserted that this represents a move toward a strict government regulation regime that would go beyond net neutrality, affecting all aspects of the Internet.
Jacob Lewis from the FCC defended that it was evident Congress intended to allow the agency to define what counts as a telecommunications service under Title II, as opposed to a more loosely regulated information service under Title I. Although Judge Richard Allen Griffin pointed out that different FCC commissions have had changing approaches to the classification of ISPs, Lewis argued that it is crucial to distinguish between those "fundamental" conclusions and the agency's "general authority" to make that decision.
Judge Raymond Kethledge showed sympathy for this argument, comparing it to the Occupational Safety and Health Administration (OSHA) rules on vaccine mandates, which the Supreme Court determined could not be applied to most large employers in the case of COVID-19 vaccines. Kethledge indicated that, while there are two mutually exclusive categories under the Communications Act, the agency will surely need to make classifications in its work.
It now rests with the judges to determine whether the FCC has the authority to enforce its latest version of the net neutrality rules. The losing party may seek a full panel review from the Sixth Circuit judges before taking the case to the Supreme Court. Even if the court decides to give the green light to net neutrality, the outcome will also depend on the results of the presidential elections taking place next week, considering it was President Trump who repealed the rules in the first place.
