The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) has likely dealt a fatal blow to the FCC’s May 2024 Net Neutrality Order, which aimed to recategorize broadband Internet access service (BIAS) as Title II telecommunications and implement a series of Net Neutrality rules but has been subject to a stay since the summer. No longer beholden to the legal doctrine of Chevron deference since the Supreme Court overturned it in its June 2024 Loper Bright decision, the Sixth Circuit’s decision annihilates the FCC’s Net Neutrality Order actions. Among other things, the Sixth Circuit held that applying Loper Bright allows the court to “end the FCC’s vacillations” on net neutrality regulations, which historically has wavered over the past 20 years with each administration change. The Sixth Circuit also held that that BIAS providers are not “merely a conduit for data transmission (a so-called ‘dumb pipe’) and thus offer consumers a telecommunications service” but rather that they “offer consumers the capability to acquire, store, and utilize data—and thus offer consumers an information service.” With Commissioner Brendan Carr—a fierce net neutrality opponent—slated to take the helm as FCC Chair later this month, it is likely that the Net Neutrality Order will remain dead in the water.
