FCC’s Net Neutrality Rule Has Been Blocked Again

Net neutrality has officially been suspended after the Sixth Circuit Court of Appeals blocked the rule from taking effect.

The court granted the stay, extending an earlier temporary stay. This time, net neutrality will be blocked until the court rules otherwise after considering petitions from broadband providers that challenged the rule. Those internet service providers (ISPs) successfully demonstrated that they are likely to succeed on the merits of their challenge, the panel of judges wrote.

“The American public wants a fast, open, and fair internet,” Jessica Rosenworcel, chairwoman of the Federal Communications Commission, said in a statement announcing the suspension. “Today’s decision by the Sixth Circuit is a setback, but we will not give up the fight for net neutrality.”

The FCC voted to reinstate net neutrality rules earlier this year after years of wavering on the rule. Net neutrality is the idea that internet service providers should not discriminate against different websites by blocking or throttling speeds or access. A controversial part of the policy is the mechanism the FCC has tried to enforce the rules: by reclassifying internet service providers as public carriers under Title II of the Communications Act. ISPs have opposed the reclassification in large part because they say it could lead to even more government control over their operations, which they say would stifle innovation. For example, they say the classification could be used to impose price regulation, although the FCC has said it has no plans to do so.

In a companion opinion, Chief Judge Jeffrey Sutton writes that the FCC’s shifting position on net neutrality across administrations makes it even more difficult to apply Skidmore’s lower standard of deference, which is considered a potential remedy now that the agencies can no longer rely on Chevron deference. Quoting SkidmoreSutton writes: “The agency’s persuasiveness depends on the accuracy of its reasoning, its technical expertise, and its ‘consistency with prior and subsequent statements,’ especially those contemporaneous with the enactment of the law,” he writes. “The problem is that we don’t know which group of experts to respect.”

He adds: “The issue of consistency makes matters worse. The Commission’s ‘intention to change course for the fourth time’ suggests that its reasoning has more to do with changing presidential administrations than with getting at the true and enduring ‘meaning of the law.'”