The Sixth Circuit has set aside the Federal Communications Commission's 2024 order reimposing net neutrality regulations on broadband internet service providers. Applying Loper Bright, the court concluded that the FCC's interpretation of the Communications Act was incorrect. The decision provides a valuable window into the new, post-Loper Bright landscape for challenges to agency action.
Background
The Sixth Circuit's decision follows multiple reversals by the FCC under successive administrations regarding the classification of broadband internet service providers under the Communications Act, as amended by the Telecommunications Act. If they provide a "telecommunications service," they may be subject to more extensive common-carrier regulations. But if they provide only an "information service," they may not.
Prior to 2015, the FCC concluded that providing access to the internet was an information service, not a telecommunications service.1 In 2015, during the Obama Administration, the FCC reversed course and issued an order determining that broadband providers provided telecommunications services, and therefore were subject to new net neutrality restrictions.2 Applying Chevron, the D.C. Circuit upheld the FCC's interpretation of the statute as reasonable.3 Three years later, during the Trump Administration, the FCC reversed course, and issued an order defining broadband as an information service. The D.C. Circuit again upheld this order under Chevron, explaining that this (completely opposite) interpretation was also a reasonable reading of the statute.4 The FCC reversed itself once more during the Biden Administration, issuing a 2024 order that again classified broadband providers as offering telecommunications services (and thus subjected them to net neutrality restrictions).
This most recent FCC order was challenged by various broadband provider associations in multiple circuits nationwide. The Judicial Panel on Multidistrict Litigation selected the Sixth Circuit to hear the petitions on a consolidated basis, and the Sixth Circuit subsequently denied the FCC's motion to transfer the petitions to the D.C. Circuit.5
Summary of decision
The Sixth Circuit's unanimous decision, authored by Judge Griffin, granted the petitions and set aside the FCC's 2024 order, holding that broadband providers offer an information service, not a telecommunications service, under the Telecommunications Act.
The new, post-Chevron legal landscape took center stage. While challenges to the FCC's prior orders received Chevron deference, following the Supreme Court's decision in Loper Bright, the Sixth Circuit could no longer defer to any reasonable interpretation of an ambiguous statute. Instead, the court concluded that Loper Bright required an independent judicial determination of the best reading of the statute.6
Before turning to the statutory text, the court considered whether it was bound by Supreme Court precedent, namely National Cable & Telecommunications Association v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005). In Brand X, the Supreme Court applied Chevron and upheld a 2002 FCC determination that cable companies providing cable modem services provided information services.7 Per the Sixth Circuit, Brand X did not dictate the panel's decision. To reach this determination, the panel applied...
