On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit struck down the FCC’s Safeguarding and Securing the Open Internet Order, which had attempted to reclassify broadband access as a regulated “telecommunications service” and adopted net neutrality regulations.  As we previously covered here, a different panel of the Sixth Circuit had previously stayed that Order pending outcome of the litigation against it.   The decision means that the FCC will not generally have a direct role in regulating at-home or mobile broadband service, absent action by Congress.

The three-judge panel held that broadband internet service providers offer only an “information service” as that key term is defined by the Communications Act, “and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service’ provision” under Title II.  In a related finding, the Sixth Circuit found that mobile broadband is a “private” mobile offering and thus it too cannot be regulated as a common carrier offering such that it can “then similarly impose net-neutrality restrictions on those services.”

Noting that Loper Bright ended Chevron’s mandated deference to an agency’s statutory interpretation, the Sixth Circuit undertook its own assessment of whether broadband internet access is a “telecommunications service” or an “information service.”  Following a statutory-interpretation analysis and review of previous interpretations by the FCC of what constitutes an “information service,” the panel concluded that “it makes sense to exclusively classify integrated services, including those offered by broadband internet service providers, as information services.”  The court explained that the key issue “is not whether broadband internet service providers utilize telecommunications,” but rather “whether they do so while offering to consumers the capability to do more.”

Notably, the Sixth Circuit punted on the question of whether the “major questions doctrine” precluded the FCC from deciding upon the regulatory status of broadband.  This was somewhat surprising, given that the original motion panel had stayed the FCC’s Order on the basis principally of the major questions doctrine.  Had the Sixth Circuit applied the major questions doctrine, it could have had significant follow-on effects for other FCC regulatory actions.

In a statement following the decision, FCC Chairwoman Jessica Rosenworcel said “with this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”  FCC Chair-designee Brendan Carr expressed support for the decision in a statement, calling it “a good win for the country.”