Sixth Circuit Rejects FCC's Open Internet Order as Inconsistent with Statutory Text

The unanimous panel has little difficulty concluding the FCC sought to exercise authority it did not have.

This morning, in its second opinion of 2025, the U.S. Court of Appeals for the Sixth Circuit has concluded that the Federal Communications Commission's so-called "Open Internet Order," a variant of what is often referred to as "net neutrality," is unlawful. The three-judge panel, consisting of Judges Griffin, Kethledge, and Bush, concluded that the FCC's regulation was inconsistent with the statutory text of the Telecommunications Act.

Here is how Judge Griffin's opinion for the panel summarizes the case and its background:

As Congress has said, the Internet has "flourished, to the benefit of all Americans, with a minimum of government regulation." 47 U.S.C. § 230(a)(4). The Federal Communications Commission largely followed this command from the Telecommunications Act of 1996 by regulating the Internet with a light touch for nearly 15 years after enactment. But since, the FCC's approach has been anything but consistent.

Beginning in the late 2000s, the FCC undertook several attempts to impose so-called "net neutrality policies," which prohibit Broadband Internet Service Providers from controlling users' Internet access—by varying speeds or blocking connections to third-party websites, for example—based on content, commercial agreements, and other reasons a provider might want to manage a user's Internet experience. Those efforts culminated in 2015, when the FCC concluded for the first time that Broadband Internet Service Providers offer to consumers a "telecommunications service" and thus are common carriers—and subject to extensive regulation (including net-neutrality restrictions)—under Title II of the Communications Act. Id. § 153(51).

Corresponding with a change in administrations, in 2018, the FCC rescinded its 2015 determination and instead reverted to its historical hands-off approach to Internet regulation by concluding that Broadband Internet Service Providers offered only "information service." Id. § 153(24). That change lifted the net-neutrality requirements.

The D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as "permissible" under the Act.

Today we consider the latest FCC order, issued in 2024, which resurrected the FCC's heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a "telecommunications service" under Title II and therefore must abide by net-neutrality principles. 89 Fed. Reg. 45404 (May 22, 2024) (to be codified at 47 C.F.R. pts. 8, 20) [hereinafter Safeguarding Order]. But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC's reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). Instead, our task is to determine "the best reading of the statute" in the first instance. Id.

Using "the traditional tools of statutory construction," id., we hold that Broadband Internet Service Providers offer only an "information service" under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the "telecommunications service" provision of the Communications Act, id. § 153(51). Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a "commercial mobile service" under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC's Safeguarding Order.

A few things are notable about the opinion. First, as it notes up front, while the legal fights over net neutrality have gone on for years, this is the first time an appellate court has considered this issue post-Chevron, which makes defending this broad rule more difficult for the FCC. Under Loper Bright Enterprises, the FCC's view of what constitutes an "information service," "telecommunications service," or "commercial mobile service" is due respect, but not deference.

Second, the panel concludes that the FCC's regulation is inconsistent with the statutory text without having to rely upon the "major questions" doctrine or any other interpretive dice-loading.

Third, as the Sixth Circuit was assigned the case in the multi-circuit lottery, this means the FCC's Open Internet Order is no more (and an appeal under the Trump Administration is quite unlikely).

Comments

[Comment-A]

I was skeptical (and remain skeptical), but I think this is the most persuasive paragraph in the opinion:

Indeed, the Advanced Services Order shows that this possibility came to fruition with the introduction of DSL. And in line with Section 706(a), the FCC categorized this improvement over dial-up as a telecommunications service when offered for a fee directly to the public. Id. at 24029–30, ¶ 35. But that tells us nothing about
how to treat Broadband Internet Service Providers, which offer a service integrating the last mile of transmission in addition to Internet access. And to be clear, the Advanced Services Order
reiterated that Internet access is an information service.

[SMP0328]

The D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as "permissible" under the Act.

This was one of the main problems with Chevron: it left many federal laws in a superposition of states. If a law could mean A or B, it meant both until it was observed by a particular administration; its meaning changing from moment to moment.

Under Loper Bright, the law receives a definitive interpretation by the federal courts, subject to Congress amending the law at issue, that won't be changed simply because the new administration is of the party opposite of its predecessor. The application of federal law is more stable under Loper Bright than it was under Chevron.

[Randal]

No, that was a feature of Chevron, not a bug.

If Congress had wanted Internet access classified as an information service for all time, it could've just said that. The point of leaving it unstated was to give the FCC some flexibility in applying the statute.

Chevron accommodated that flexibility. Without it, we'll be stuck with these impenetrable court opinions forever. That's not an improvement.

[SMP0328]

Congress long ago developed a very bad habit of enacting vague laws and leaving it to one or both of the other branches to figure out what it meant. That way, Congress could blame others for any bad results and possibly come to the rescue by amending the law.

No such court opinion is impenetrable. Congress could expressly state something like Chevron in any statute or amend a statute to abrogate a court interpretation of that statute. Loper Bright simply said that the APA was the default and that law says agency actions are subject to judicial review. That's why Chevron was overruled.

[Randal]

It's fair to assume that Congress was legislating with Chevron in mind, so laws passed during the Chevron era should be considered to include such a statement (requiring courts to defer to agencies to fill obviously intentional gaps).

[Michael P]

Congress can change any law where a court finds that the existing version has unwelcome implications. That's the opposite of being "stuck with these impenetrable court opinions forever".

[CommentMonkey]

I disagree. What SMP0328 points out is that transactional costs associated with compliance were higher under Chevron. Instead of evaluating an unsettled legal question by asking what is the most likely interpretation of some statutory language, the regulated entity had to ask that question and then ask whether the current administration's enforcement priorities might cause it to favor a different outcome, whether another administration might change an interpretation by its predecessor, and so on. This means more time and money spent by lawyers and experts, higher compliance costs, more agency lobbying, and greater competitive advantage to larger firms with big compliance departments. Ergo, less innovation; less competition. Scrapping Chevron means more predictable outcomes and lower costs.

Is there a corresponding loss of agency flexibility? Yes. But it seems to me the advantage of more certain, fixed legal rules outweighs the benefit of agency flexibility. This is particularly so because Congress can be specific about delegating agency authority where it wishes to do so. Footnotes 5 and 6 of the Loper Bright opinion set forth some examples. I would rather have agency flexibility limited to instances where Congress has expressly provided for it. Where there is no statutory delegation of agency discretion, it seems to me it ought to be up to the courts to decide questions of law without the agencies getting to put a thumb on the scale.

[Randal]

That's more of an anti-regulatory argument than a courts vs agencies one. If the court had found for the FCC, that would result in the highest regulatory burden of all, with no chance for relief other than petitioning Congress.

[Randal]

Poor Telecommunications Act of 1996. It really did bungle these definitions. It's very poorly drafted.

I guess we need a new one.

[MaddogEngineer]

Well, yeah. That is the proper response when a law has been found deficient: the legislature updating it. You make it sound like it's a bad thing.

Good luck with that. I just feel bad for all the people who will once again start dying from a lack of net neutrality.

[Randal]

We had net neutrality when it mattered. At this point, people basically understand what to expect from the Internet and would be unlikely to tolerate an ISP that provided a crippled experience.

That's one of the irritating parts of this opinion. We're well past the point of the Internet being "nascent." All the platitudes about keeping regulatory hands off the struggling newborn Internet were unnecessary posturing that fell quite flat.

[MaddogEngineer]

Doing the wrong thing to get the right outcome is still not the rule of law. Plus, that's just a retcon hagiography, where you're side is once again the heroes. Even if they aren't following the law.

But you also show you know nothing about what was actually at stake with net neutrality. It wasn't about an ISP ripping off the consumer. It was about which big corporation would pay for network capacity updates. Net neutrality was repealed at the right moment to take the FCC finger off the scale for that intra-corporation skirmish.

The government continues to demonstrate it has no idea what's actually good for consumers in the technology realm, given its recent antitrust pursuit of Google. They've learned the wrong lessons from their Microsoft action. No, forcing Google to spin off the Chrome browser is not a remedy. It's not the problem, but will create new ones. Google does not have a search/advertising monopoly because it controls the most popular browser. Just like with Microsoft case, it's the non-negotiable business terms, not the consumer product. Also AI is about to rejigger the playing field in unpredictable ways.

[Randal]

It wasn't about an ISP ripping off the consumer. It was about which big corporation would pay for network capacity updates.

Those boil down to the same thing. Netflix doesn't get a cut of the ISP's subscription fees. Why should it have to pay for Comcast's network infrastructure on pain of being cut off from Comcast's customers? (That's the ripping-off-the-consumer part.)

Back when most people's idea of online was AOL, that sort of threat was fairly plausible. Even now we see similar things with e.g. DirecTV cutting off access to such-and-such content as a negotiating strategy. We didn't want the ISPs doing that kind of thing on the Internet, since they have a position of power that's largely unconstrained by competition. But now that AOL is long forgotten, it's hard to imagine an ISP plausibly threatening Netflix (or whoever) that way.

[Rossami]

"We had net neutrality when it mattered" which was precisely never.

That statement is true in both senses - it never mattered and we never had it anyway. The net neutrality rules were challenged as soon as they were proposed and remained challenged until overturned. At no point were they ever in force.

[Randal]

We had net neutrality in practice from about 2003 to 2010, and then again from 2015 to 2018. Several FCC actions were enforced against un-neutral ISPs during that time.

[Voize of Reazon]

I appreciate that Chevron gave answers that depended on which way the wind was blowing, and that is a real problem.

But now we have the opposite problem, courts giving answers that may be more stable but nonsensical. An Internet service provider doesn't provide the capability to retrieve information, it enables remote access to other subscribers some of which are information providers providing that capability. It's like saying my phone service is a pizza bakery because I can use it to order pizza.

[Rossami]

If the court gives a stable but nonsensical answer, the fix is trivially easy - get Congress to change (or at least clarify) the law.

[JoeFromtheBronx]

It is not "trivially easy" to get legislation passed in Congress. Legislation that has wide support from the people included.

Some people might like the number of bottlenecks that make change of the law hard. Another matter.

This sort of thing factors into the power of judicial rulings and the importance of agency discretion.

[BadLib]

This sort of thing factors into the power of judicial rulings and the importance of agency discretion.

Agency discretion is a very dangerous thing given

It is not "trivially easy" to get legislation passed in Congress.

because it's difficult for Congress to rein in an agency which is abusing its discretion.

[Randal]

There's an interesting avenue that remains open for the FCC. The court agreed that ISPs necessarily utilize telecommunications in providing their information service. In fact, the statute's definition of "information service" ends with "via telecommunications."

The statute also says that common carrier regulations apply "to the extent" that the carrier is providing telecommunications services.

I think there's a strong argument that the "telecommunications" that underlie ISPs aren't a "telecommunications service" since they're not offered to the public "directly." But it's not an airtight argument. The FCC may be able to argue that the telecommunications part of the "bundle" has to be treated as a common carrier. That would be so horrific to ISPs that they might be more willing to negotiate on net neutrality than risk going down that road.