US appeals court halts new FCC rules • The Register

The Federal Communications Commission’s attempt to restore net neutrality has been stayed by the Sixth U.S. Circuit Court of Appeals pending further consideration.

The FCC reauthorized the net neutrality rules in April, prompting immediate appeals from a number of telecom companies and trade groups. It wasn’t until late June, when the U.S. Supreme Court issued a series of decisions that could have struck down the tech regulations, that telecom trade groups filed a petition for review (PDF) asking the Sixth Circuit Court of Appeals to permanently halt the new net neutrality rules.

In case you were unsure whether there was a connection between the Supreme Court’s actions and the broadband industry’s petition, it is clearly outlined here.

“Before the Supreme Court’s decision on Loper Light …the petitioners would likely succeed in challenging on the merits the Commission’s reclassification of broadband internet as a public service,” the groups said in their petition. “After Loper Lightthat the probability of success is even greater.”

This Loper Light The case was decided by the Supreme Court in late June, shortly after it stripped Chevron of a privilege that allowed government agencies to define ambiguous legislative terms as long as they continued to act to carry out Congress’s intent.

The Supreme Court’s decision to eliminate Chevron’s compliance meant that courts could theoretically become the final arbiters in defining terms and approving regulations. The decision in Loper Light further expanded the powers of judicial review, and the industry wasted no time in immediately asking judges to do the same.

In summarizing the argument against the FCC’s new net neutrality rules, the petitioners’ attorneys said that Loper Light completely undermines net neutrality because it includes the principal questions doctrine. This doctrine prohibits federal agencies from independently deciding questions of economic and political importance without congressional approval, and net neutrality certainly carries significant political and economic weight.

Loper LightAccording to lawyers, this meant that in this case the FCC could not count on deference from Chevron, and that previous court decisions classifying broadband Internet access as an information service rather than a regular operator should be considered a binding precedent.

The petition also argues that the agency’s rules, which are “contemporary and consistent,” are the only ones that should be considered justifiable under judicial review, “and the Commission’s recent and repeated vacillations (on net neutrality) are something else entirely.”

“Indeed, the concurring opinion describes the Commission’s exchange on this very issue as a prototypical agency action to which courts should attach no weight,” the petitioners argue. We note that this logic could apply to most of the regulations at issue, since incoming presidents often overturn regulations enacted by previous administrations, as was the case with net neutrality.

Still, the petition’s argument was enough for the Sixth Circuit Court of Appeals to stay (PDF) the FCC’s net neutrality rules until Aug. 5, pending further judicial review. The rules were set to go into effect July 22.

While the outcome has not yet been decided, recent SCOTUS decisions have already led to other agencies’ rules being permanently suspended. Earlier this month, a federal judge in Texas rejected some applications of the FTC’s new ban on noncompete clauses based on the elimination of Chevron deference, which could mean that net neutrality will soon become a fantasy in the US again.

The FCC did not respond to questions asked in this article. ®