“Net neutrality” rules, which restrict internet service providers’ ability to manage users’ internet access—by, for instance, changing speeds or blocking third-party connections based on content, contractual obligations, or other factors—were for many years a point of contention. The alarmist Left long insisted that such regulation from the Federal Communications Commission was needed to avert a panoply of predatory conduct. Experience has shown that panic to be baseless.
And the legal dimension of the issue carries its own lessons. The odyssey of net neutrality directives, the most recent of which the Sixth Circuit held to be unlawful last month, now stands as a benchmark in the courts’ recent repudiation of the arbitrary and undemocratic regime of Chevron deference.
The internet has for years generally benefited from a light regulatory touch under the Federal Communications Act of 1934, which was amended by the Telecommunications Act of 1996, unless a provider is a “common carrier.” Under the 1996 act, a “telecommunications service” is subject to common-carrier regulatory oversight while an “information service” is not. The FCC took the position for almost 20 years that companies providing internet access offered information service and that common-carrier regulations therefore did not apply. But during the Obama administration, the FCC worked to change that. In 2015, the agency reclassified internet service providers as offering telecommunications services and then imposed a net-neutrality order. During President Trump’s first term, the FCC again reversed course, reclassifying providers as an information rather than a telecommunications service.
The regulatory changes occurred with judicial sanction, courtesy of Chevron deference. The longstanding FCC interpretation preceding the Obama switch was upheld by the Supreme Court, citing Chevron, in 2005 in the context of broadband cable modem companies. In 2016, the D.C. Circuit applied Chevron and upheld the Obama administration rule. (Notably, the D.C. Circuit denied en banc review over the dissent of then-Judge Brett Kavanaugh among others, and the Supreme Court denied certiorari over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.) Then in 2019, the D.C. Circuit, again applying Chevron, upheld the contrary Trump administration rule.
And the regulatory odyssey had not yet ended. In 2024, the Biden administration resurrected the heavy-handed interpretation to reimpose net neutrality in the form of an internet safeguarding order. But another judicial flip-flop was not in the cards. During the final weeks of the Biden presidency, the Sixth Circuit struck the order down in Ohio Telecom Association v. Federal Communications Commission, and it did so unhampered by Chevron, thanks to the Supreme Court’s decision last year in Loper Bright Enterprises v. Raimondo.
Recognizing that it was no longer shackled to agency interpretation, the court was able to call out the administration straightforwardly for “misread[ing] the text of the Communications Act.” The panel opinion by Judge Richard Griffin demonstrated how “applying the plain meaning of” the statute “to the interconnected nature of the Internet” led to the conclusion that unlike telecommunications services, “Broadband Internet Service Providers at the very least ‘offer[]’ consumers the ‘capability’ of ‘retrieving’ ‘information via telecommunications.’”
As for mobile broadband, which was also covered by the safeguarding order, the court analyzed the plain text of statutory language adopted in 1993 that, by its definitions, rendered that means of internet access to constitute a “private mobile service” rather than a “commercial mobile service” subject to common-carrier regulation.
While acknowledging that the internet is a “complicated and dynamic” subject for regulation, the court did not treat the FCC’s claimed expertise as an escape from its own duty to interpret the law: “[P]ost-Loper Bright,” the agency’s “‘capability,’ if you will, cannot be used to overwrite the plain meaning of the statute.”
Unlike prior judicial rulings from the Chevron era that were built on the sand of changing presidential administrations, the Sixth Circuit has handed down a ruling that deserves to last as long as the statutory language does. Congress, for its part, needs to reclaim its role in setting federal policy in this and other areas that entail legislation no other branch can constitutionally offer. Besides imparting greater stability to the law, the demise of Chevron deference offers a welcome boost to representative democracy.