The U.S. Court of Appeals for the 6th Circuit struck down the FCC’s net neutrality ruling that was passed earlier in 2024. The Court ruled on an appeal filed by a group of major industry trade associations that are against broadband regulation.
The FCC’s effort to classify broadband has always been described in the press as net neutrality, but that is only a small part of what was included in 434 page FCC order that just got killed. The primary emphasis of the FCC order was to classify broadband as a telecommunication service under Title II regulations. This is the third reversal of this FCC policy. It was first passed by the Tom Wheeler FCC, reversed by the Ajit Pai FCC, reinstated again by the Jessica Rosenworcel FCC, and now killed by this federal court.
The Court just reversed a lot more than net neutrality rules. For example, the FCC order had reinstated the FCC’s formal complaint process for the public. The order included transparency rules that require ISPs to disclose network management practices and network performance. The order put the FCC back into the role of arbitrating disputes between carriers on issues like peering, traffic exchange, and interconnection. The FCC’s order provided the authority for the agency to develop rules for broadband in apartment buildings – a controversial issue during 2024. Perhaps the most important thing killed by the court is the FCC’s ability to deal with cybersecurity issues and malicious actors. I’ve read opinions from regulatory experts that think this ruling might hinder the FCC from enforcing broadband privacy protection, fighting digital discrimination, or even promoting broadband deployment using the Universal Service Fund.
This ruling is incredibly heavy-handed. The question before the court was if the FCC has the authority to regulate broadband – not if it should do so. This issue has been in the courts for a decade, and no previous court thought the FCC didn’t have this authority. Courts affirmed that authority in upholding Tom Wheeler’s FCC decision to regulate broadband under Title II, and affirmed the same authority to support Ajit Pai’s decision to not regulate it. The courts have consistently ruled that the decision to regulate or not regulate broadband is within the intended authority granted to the FCC by Congress. This is as good of a case as any that shows the increasing common trend by federal courts to go beyond settling disputes and to set federal policy.
This ruling is also the result of another dangerous trend, where plaintiffs go court shopping and bring cases in the jurisdiction that is likely to side with them. Historically, issues concerning the FCC have always been held in the Appeals Court in the District of Columbia, which has an accumulated expertise in telecom issues.
Interestingly, this ruling did not rely heavily on two recent Supreme Court cases in making its ruling. The order gives only a minor nod to the Supreme Court’s Loper Bright decision that overturned the Chevron doctrine. The Court also did not rely on “major question doctrine” arguments that were argued by the ISPs that brought the appeal.
One consequence of this ruling will be to free States to fill the regulatory void now that the FCC is clearly out of the business of regulating broadband. California already has a net neutrality rule in place that is even a little stronger than the federal one that just got killed. New York is now enforcing rules that require ISPs to offer low rates for low-income homes. I expect a lot more states will now get involved with some aspect of regulating broadband. I have to wonder if this is what big ISPs really want. Instead of weak regulation by the FCC they are likely to see a patchwork of stronger regulations in states.
The Court decision returns us to the same place we’ve been for decades. Congress could easily clarify the FCC’s role in regulating broadband, but it has not done anything meaningful since the Telecommunications Act of 1996. Because of the huge influence of telecom lobbyists, the chance that Congress will wade into regulatory issues seems increasingly remote.
Can we somehow find a way to focus on fixing the root cause of the debate, bufferbloat, now? https://blog.cerowrt.org/post/net_neutrality_customers/
Thanks for bringing that up Dave!
We have the technology! Readers should consider that there are products on the market for an incredible value that can help with this.
openwrt for home routers, I wish we had more manufacturer support and/or the public mindset was to demand this software in modern hardware.
support for advanced quality of service/quality of experience software on home routers.
Implementation of a quality of experience software like libreqos.org (one among a vibrant and growing market of products) for provider side quality of experience.
And getting more direct paths to internet exchanges to get latencies down across the board.
We essentially have every single thing we need to ‘make the internet great again’ if we could just update the narative to low latency and jitter make things fast instead of ‘moar speed’.
edit: libreqos.io !
I don’t think this was ‘heavy handed’. The base question is legitimate, does the FCC have the authority to regulate business operations.
I was once a proponent of Net Neutrality, but I’ve changed my position to be one of wanting transparency or truth in advertising. If a service isn’t net neutral then it should simply have to say it in the main bulletpoints, ie ‘up to 100Mbps with 1080p streaming’ for services that restrict streaming. Yes there are single vendor markets so people can’t choose other options however I think that presents opportunity for a second provider to build it with NN products. I would rather solve that issue by investing in long haul fiber paths to actually get the nation better connected and open up opportunities for competition.
I don’t think this is the FCC’s job or that the FCC should have the authority, this is all consumer protection and what skill does the FCC bring to consumer protection? Or what ‘business acumen’ does the FCC bring? I would argue none on both fronts. The FCC should not have any authority on business operations or consumer choice because they don’t have any expertise on the matter.
Let’s define what makes a service Net Neutral in plain text so operators can offer compatible plans for those that choose it, and make sure there’s no cheating of that branding. Let consumers decide.
There should be zero doubt that the FCC or government forcing behaviors like NN or minimum service speeds forces prices up. Customers that need to read the local facebook group but don’t stream are forced to pay for a streaming plan and those that only watch 1080p video are forced to pay for 4k capable services that they didn’t ask for. The FCC has done everything it can to either take the consumer’s ability to vote with their wallet away, or subsidize only certain operators to race to the bottom and destroy markets and take all choice away. Not good.
Hard to vote one’s wallet both due to the fact that telecom delivery infrastructure tends toward monopoly like other utilities and when market failure occurs as it has during the transition from analog voice to IP telecom. The Title II rulemaking correctly recognized IP telecom a utility like POTS before it and was putting in place authority and a framework to allow state public utility commissions to regulate it such.
I dont have a strong argument against those single vendor markets. I would say this with authority (I’m an operator…) that the tendancy towards monopoly is false, that’s ENTIRELY government selection at work through single vendor winner take all funding models.
Every community has someone that would want to start an ISP if they could source connectivity. Lack of accessible long haul / carrier fiber is the hold up. I’m not in 2 dozen communities because I can’t buy fiber in them and 100 miles wireless links just aren’t fast enough.
Point being, let’s actually be economy minded, do what we can to open up business opportunities so that competition comes up out of the woodwork ready to go!