The net-neutrality time loop saw yet another plot twist Thursday when a circuit court issued a stay of the regulations that the Federal Communications Commission approved in April.The commission had restored rules that the FCC enacted in 2015 under a Democratic majority before scrapping them under a Republican majority in 2017. But a three-judge panel of the US Court of Appeals for the Sixth Circuit paused the FCC rules in a 14-page unanimous opinion (PDF) that essentially says the FCC can’t decide what regulatory bucket a broadband provider falls into because Congress hasn’t said the commission can make that decision.“Net neutrality is likely a major question requiring clear congressional authorization,” the ruling says, nodding to a Supreme Court’s recent elevation of the “major questions doctrine” reducing the reach of regulatory agencies. “Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers.” Each time the FCC has changed channels on net neutrality over the last 10 years, it has chosen to classify ISPs as “telecommunications services” subject to common-carrier rules under Title II of the Telecommunications Act or as “information services” under Title I of that foundational law. Those same classification calls animate a history of broadband regulation that goes back to the late 20th century. This spring’s 3-2 vote by a Democratic FCC majority to enact rules barring ISPs from blocking, slowing or prioritizing particular types of content did so by defining broadband providers as telecommunications services that must treat all types of data equally. That term as defined by statute means “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”The 3-2 vote by a Republican FCC majority seven years ago, reversing the 3-2 Democratic vote of 2015 and surrendering almost all of the FCC’s regulatory authority over ISPs, required throwing ISPs back into the information-services bucket. The definition for that runs a good deal longer: “The offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”You might think that language evokes America Online bragging about how many features it could stuff on a floppy disk, not how today’s broadband providers compete on speed, availability, and price. But the court’s logic suggests that this FCC and every one before it never had the authority to decide either way.Its stay sets the stage for a panel of judges on the Sixth Circuit to hear the case starting in October. “The American public wants an internet that is fast, open, and fair,” FCC Chair Jessica Rosenworcel said in a statement Thursday. “Today’s decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality.” On the other side of the aisle at the FCC, Commissioner Brendan Carr voiced his support for the stay and urged the commission to hit the Undo key on this year’s regulations.
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“But every single American that lived through the great ‘net neutrality’ repeal of 2017 knows from their own experience that Title II is a solution that won’t work to a problem that does not exist,” he said in part of a much longer statement (PDF). “That is why Americans benefited from faster speeds, lower prices, and greater competition in the years since the FCC, under then Chairman Ajit Pai, ended the agency’s two-year experiment with government control of the Internet.”Four telecom trade associations–the cable group NCTA, USTelecom, the wireless association CTIA, and the small-ISPs coalition ACA Connects–cheered the stay as well in a joint statement. “By all measures, broadband in the U.S. has been thriving under a light-touch regulatory framework. We’re pleased that the Sixth Circuit has preserved that framework during the appeal process, thus shielding providers and their customers from the many harms that would stem from attempting to comply with the FCC’s ill-fitting and ambiguous common carrier mandates.”Public Knowledge, a nonprofit that has long supported net-neutrality regulations, posted its own statement from legal director John Bergmayer citing popular support for those rules and earlier court rulings that had upheld the 2015 rules. Or, he suggested, “Congress will step in to reinstate these popular and necessary protections.”That, however, would almost certainly require voters to put Democrats into the majority of both houses of Congress. If voters go in another direction and return President Trump to the White House, a new Republican majority on the FCC would almost certainly vote to scrap the current rules, returning the debate to its 2017 phase.
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