August 9, 2024
When our founding generation established this republic, their perennial fear was that one branch of government would become too powerful, perhaps tyrannical. To prevent this, they created a system of checks and balances whereby one branch could always rein in the aggressive, power-hungry tendencies of the other branches.
This textbook definition of the structure of the U.S. government played out most recently when the U.S. Court of Appeals for the Sixth Circuit blocked the Democratic-led Federal Communications Commission (FCC) from reinstating net neutrality guidelines that the Commission approved back in April 2024.
The history of net neutrality dates back to 2015 when the then-Chair of the FCC enacted the Open Internet Order (OIO). The OIO classified internet service providers as Title II Common Carriers, which gave the FCC sweeping authority to regulate prices and services and prohibit any business practices the commission considered unjust or discriminatory. In 2018, President Trump’s FCC chair, Ajit Pai, rolled back the OIO order, reclassifying internet service providers as Title I Information Services and instituted a light touch regulatory regime. Pai argued a lighter touch would provide “stronger incentives to build networks, especially in unserved areas, and to upgrade networks to gigabit speeds and 5G.”
Regulatory ping pong continued in 2024 when incumbent chair Jessica Rosenworcel reversed Pai’s order with the Safeguarding and Securing the Open Internet Order, reinstating net neutrality guidelines, and reclassifying ISPs as common carriers.
Shortly after Chair Rosenworcel reinstated net neutrality guidelines, a coalition of 10 national and state trade associations filed a petition with the FCC asking them to stay implementation, pending judicial review. The trade associations argued that because Congress had not specifically granted the FCC the authority to regulate ISPs as Title II Common Carriers Under the 1934 Communications Act, “they are likely to prevail on the merits that the Order is unlawful under both the major-questions doctrine and ordinary principles of statutory interpretation.” The FCC, however, rejected this claim.
After months of litigation, the Sixth Circuit agreed with the trade associations, concluding that given broadband’s importance to daily life and national security, the question of how to regulate it falls under the major-questions doctrine and can only be affirmatively answered by Congress. In a scathing rebuke to the efforts of the FCC to expand its power, the Sixth Circuit noted, “Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services and never did so with respect to broadband providers specifically or the internet more generally.” In making this assessment, the judicial branch checked executive overreach and restored the proper balance between the three branches of government, as our founding generation intended.
In staying the FCC’s most recent net neutrality guidelines, the Sixth Circuit has not only prevented one branch of government from encroaching on the functions of another, it has also ensured that consumers will reap the benefits of a light-touch regulatory approach to broadband.
Studies have shown that while prices continue to rise across the economy, broadband prices are falling and speeds are increasing, meaning that consumers are getting more for their money when it is being stretched at the grocery store and at the fuel pump. Placing heavier restrictions on how ISPs operate would inevitably have disrupted the ecosystem that allowed providers to offer better services at a lower price.
In response to the Sixth Circuit’s decision, Chair Rosenworcel released a two-sentence statement stating that “The American public wants an internet that is fast, open, and fair. Today’s decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality.” Perhaps the brevity of Chair Rosenworcel’s response shows she understands the futility of defending her net neutrality order in court and that she will be unable to deliver on President Biden’s commitment to restore net neutrality.
For those who believe in checks and balances, preventing government overreach, and ensuring consumers get better service at lower prices, the decision from the Sixth Circuit should be welcomed.
