In a blow to the FCC’s Net Neutrality Order (Order) adopted this year recategorizing broadband Internet access service as Title II telecommunications, the U.S. Court of Appeals for the Sixth Circuit has granted a long-term stay of the Order pending resolution of the its appeal on the merits. Grant of the stay is a bad sign for the FCC’s recent net neutrality efforts, as the court found that (among other things) the broadband industry petitioners that brought the challenge “are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations.” The court further notes that the FCC’s general or ancillary authority to gap fill Congress’s Communications Act regulatory scheme “does not suffice to show that Congress clearly delegated authority to resolve a major question like this one.” The Order was initially scheduled to take effect July 22, 2024, which was pushed back two weeks to August 5 with the court granting a temporary stay. Now, the Order may not take effect for several months–if it survives appeal and takes effect at all. Following briefs to be filed in the coming months, oral arguments are currently scheduled for October 28 – November 1, 2024. Regardless of the Sixth Circuit outcome, the Order is expected to be appealed by the losing party to the Supreme Court, which recently has been issuing decisions barring federal agency actions on “major questions” of “vast economic and political significance” without “clear Congressional authorization.”
