6th Circuit Wrongly Rejects Federal Jurisdiction Over Essential Broadband Internet Access Services

On Thursday, a three-judge panel for the U.S. Court of Appeals for the 6th Circuit ruled against the Federal Communications Commission's 2024 Net Neutrality rulemaking, which empowered the agency to protect internet users against all manner of abuse by major broadband internet access providers like AT&T, Comcast and Verizon.

In April, the FCC reinstated its Title II authority over broadband-internet access. This authority empowers the agency to hold powerful telecommunications companies accountable for providing service on just, reasonable and nondiscriminatory terms to internet users throughout the United States. It also serves as the basis for the FCC’s Net Neutrality rules, which prohibit those companies from blocking, slowing down, or charging extra for the internet content and applications their broadband customers choose.

In September, Free Press filed a brief in the case supporting the FCC's April ruling. The brief — filed jointly with the Benton Institute, the National Association of Regulatory Utility Commissioners, the Open Technology Institute and Public Knowledge — focused on the legal precedent and economic analysis supporting the Commission’s decision, showing the wisdom of and the need for the FCC’s jurisdiction over the essential telecommunications platform of our time.

The 6th Circuit ruled nevertheless that broadband internet access service should be classified as a Title I “information service” under the Communications Act. The court rejected the Biden FCC’s argument that broadband should be classified as a “telecommunications service,” subject to the FCC’s mandates and authority in Title II of the Act to ensure service on an equitable and nondiscriminatory basis.

Free Press Vice President of Policy and General Counsel Matt Wood said:

“Beyond being a disappointing outcome, today’s 6th Circuit opinion is just plainly wrong at every level of analysis. The decision missed the point on everything from its granular textual analysis and understanding of the broader statutory context, to the court’s view of the legislative and agency history, all the way to its conception of Congress’s overarching policy concerns.

“Unfortunately, this result also shows why the industry suing the FCC was so eager to engage in forum-shopping to get this case away from the federal court in Washington, D.C. — which had developed deep expertise on broadband issues during prior rounds of litigation.

“In April, the FCC issued an order that properly restored the agency’s congressionally granted oversight authority to protect people from any ISP discrimination and manipulation. That common-sense FCC order tried to ensure that the companies providing America with the essential communications service of this century don’t get to operate free from any real oversight.

“These companies baselessly claim that any regulation will hurt their bottom-line. As Free Press has shown repeatedly, treating broadband like a common-carrier service does nothing to dampen or dissuade private investment in this crucial infrastructure. And the question for any court interpreting the Communications Act must be what is in the public’s best interest, not just one industry sector’s financial interests.

“Today’s decision will let the incoming Trump FCC abdicate its responsibility to protect internet users against unscrupulous business practices. It’s rich to think of Donald Trump and Elon Musk’s hand-picked FCC chairman characterizing light-touch broadband rules as heavy-handed regulation, while scheming to force carriage of viewpoints favorable to Trump on the nation’s broadcast airwaves and social media sites.

“With today’s ruling, the 6th Circuit has for now denied the public the internet access service that it deserves — one that is affordable, reliable, safe, accessible, and free from unlawful discrimination. Despite this setback, Free Press will continue to fight — in the courts, in Congress, and everywhere — for an open, fair, and free communications network for all.”