FCC’s latest net neutrality rule temporarily stayed in court • The Register
The Federal Communications Commission’s attempt to reassert net neutrality rules has been put on hold by the US Sixth Circuit of Appeals pending further review.
The FCC re-approved net neutrality rules in April, leading to immediate appeals from a number of telecommunications firms and trade organizations. It wasn’t until late June, when the US Supreme Court made a number of decisions that could upend tech regulations, that the telco trade groups filed a review petition [PDF] that asked the Sixth Circuit Court of Appeals to permanently stay the new net neutrality rules.
In case you’re not sure there’s a connection between the US Supreme Court’s judgments and this petition from the broadband industry, they spell it right out.
“Before the Supreme Court’s decision in Loper Bright … petitioners were likely to succeed on the merits of their challenge to the Commission’s reclassification of broadband as a public utility,” the groups said in their petition. “After Loper Bright, that likelihood of success is even clearer.”
The Loper Bright case was decided by the Supremes in late June not long after it gutted Chevron deference, which allowed government agencies to define ambiguous legislative terms provided they were still working to carry out Congress’ intent.
The Supreme Court’s decision to eliminate Chevron deference meant courts could, in theory, become the ultimate arbiters of defining terms and approving regulations. The decision in Loper Bright further expanded that judicial review power, and the industry has wasted no time in appealing to judges to do just that.
To summarize the argument against the FCC’s new net neutrality rules, lawyers for the petitioners said Loper Bright completely undermines net neutrality because it embraces the major questions doctrine. That doctrine bars federal agencies from independently resolving questions of economic and political significance without Congressional approval, and net neutrality definitely carries considerable political and economic weight.
Loper Bright, the lawyers argue, meant Chevron deference was unavailable to the FCC in this case, and that prior judicial decisions that classified broadband as an information service rather than a common carrier should be considered binding precedent.
It was also argued in the petition that agency regulations that are “contemporaneous and consistent” are the only ones that need to be considered legitimate under judicial review, “and the Commission’s recent and repeating flip-flopping [on net neutrality] is anything but.”
“Indeed, a concurrence described the Commission’s back-and-forth on this very issue as the prototypical agency action to which courts should afford no weight,” the petitioners argue. That logic, we note, could apply to most any contested regulation, as incoming Presidents often scrap rules put in place by prior administrations, as was the case with net neutrality.
Even still, the petition’s argument was enough to lead the Sixth Circuit Court of Appeals to stay [PDF] the FCC’s net neutrality rules until August 5 pending further judicial review. The rules were set to go into effect on July 22.
While the outcome hasn’t been decided, the recent SCOTUS decisions have already resulted in permanent stays of other agencies’ rules. Earlier this month a Texas federal judge scrapped certain applications of the FTC’s new ban on non-compete clauses based on the elimination of Chevron deference, which could mean net neutrality will soon be a fantasy in the US once again.
The FCC has not responded to questions for this story. ®