The Federal Communications Commission’s hopes of enforcing net neutrality rules faced a significant setback last week. A panel of appeals court judges blocked the regulations on Thursday, ruling that broadband providers are likely to win the case on the merits.
The US Court of Appeals for the 6th Circuit had previously issued an administrative stay delaying enforcement of the rules. However, the judges’ recent order stays the net neutrality rules until a final ruling, suggesting that the judges believe the ISPs have a stronger case than the FCC.
"Because the broadband providers have shown that they are likely to succeed on the merits and that the equities support them, we grant the stay," the judges noted in their unanimous ruling.
In April, the FCC voted to revive net neutrality rules that were discarded by the Trump-era commission. To uphold these rules, the FCC must convince judges that it has authority to classify broadband as a telecommunications service, a prerequisite for imposing Title II common-carrier regulations.
The Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo further complicates the FCC’s task. The ruling overturned the Chevron precedent that had allowed agencies to interpret ambiguous laws as long as their conclusions were reasonable. ISPs have been hoping this evolving judicial approach would prevent the FCC from defining broadband without explicit Congressional instructions.
The 6th Circuit panel determined that broadband providers are likely to succeed because the FCC’s final rule "implicates a major question" that has not been clearly authorized by Congress. Net neutrality "is likely a major question requiring clear congressional authorization," noted the judges.
Despite the ISPs’ apparent advantage, net neutrality supporters believe the final outcome remains uncertain. "The grant of a stay definitely gives the edge to the ISPs. That said, the outcome is far from certain. The case goes to a different set of judges, which means that it may get a fresh look," Andrew Jay Schwartzman from the Benton Institute for Broadband & Society told Ars Technica.
Oral arguments for the case—which is titled Ohio Telecom Association v. FCC—may be held as early as October 28, with the final decision yet to be made. The losing side could subsequently seek an en banc rehearing with all the court’s judges, and the matter may eventually escalate to the Supreme Court.