Administrative Law

Jonathan H. Adler | 8.1.2024 8:15 PM

Today a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers' request for a stay of the Federal Communications Commission's rule that would classify broadband internet providers as common carriers under the Communications Act, often referred to as "net neutrality." According to the panel, the broadband providers were likely to succeed on the merits–in part due to the major questions doctrine–and this justified staying the rule pending review of their petitions. The panel consisted of Chief Judge Sutton and Judges Clay and Davis.

From the court's unanimous per curiam order:

Broadband internet refers to the set of platforms that permit users to access the internet at speeds faster than dial-up services. . . . Over three-quarters of Americans have access to high-speed broadband service. . . . In addition to renting or constructing the physical network connecting computers, broadband internet providers offer other services that enable subscribers to access content from "edge providers"–namely websites, such as Google, Netflix, and Amazon, that host content on their own networks. . . . These services include DNS, short for Domain Name Services, a "phonebook" that matches web addresses (e.g., http://www.ca6.uscourts.gov) with their IP (internet protocol) addresses. And they include "caching" services that speed up data access by storing copies of edge provider content closer to the user's home system. . . .

The Communications Act of 1934 covers broadband providers, and it gives the Federal Communications Commission authority to promulgate rules and regulations under the Act. The extent of that regulatory authority turns on whether the providers count as common carriers under the Act. If a business counts as a common carrier, it must comply with Title II of the Act, which includes rate-review regulations and non-discrimination obligations. . . . For other businesses, the Commission may impose only the ancillary regulations authorized under Title I, which generally preserve the ability of companies to respond to market conditions. . .........

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