January 13, 2025
The way the internet works could be changing thanks to a new ruling from a federal appeals court that for some reason – flew right under the radar.
Ok – so this case is called Ohio Telecom Association vs the Federal Communications Commission and concerns net neutrality. And less than two weeks ago, the Sixth Circuit Court of Appeals — after almost 20 years of fighting – said no more net neutrality. It’s gone.
So you’re probably wondering…well Lisa…what is net neutrality?
Before you can understand that — you need to remember that there was a time before the internet existed. But when the internet really started to become a thing – congress said – well hey – we better put some rules down to govern this world wide web. So in 1996 congress passed the Telecommunications Act. That law said among other things — we the government think technology is better when politicians stay out of it. So we are going to categorize telecommunication companies into two buckets. Bucket one would be “information services.” And bucket two would be “common carrier services,” in the law, the FCC would have significant ability to regulate common carriers but would have little control over companies that fall into information services. Initially internet companies fell into the information services bucket and were regulated with a light touch.
Well during the Obama administration – the FCC said – wait a minute because *we are taking this hands off approach to the internet– these internet providers are doing some questionable things. Treating customers differently. They’re controlling user access to the internet by throttling internet speeds or blocking connections to third party websites because of deals they’ve made between each other–and because of that we better step in and use a heavier hand to regulate them. And in 2015 this policy idea of net neutrality really took hold. The theory was net neutrality would make the internet more equally accessible.
So under President Obama, the FCC decided broadband internet providers – with some exceptions–would now fall into that “common carrier” bucket therefore under the 1996 telecommunications act –could be more heavily regulated. The net neutrality rule from the FCC in 2015 said internet service providers could no longer operate the way they had been and now must provide equal access to the internet with no change in speed, regardless of content, user, platform, application or device.
Supporters at the time were thrilled. They said this fostered a more open internet, it would prevent these internet service providers from blocking or filtering content and would prevent them from giving preferential internet speeds to some and not to others. Critics were obviously not pleased. They were upset because they were like – hey what happened to all that talk just 10 years ago about a light touch to internet regulation and politicians staying out of the way? They said this is classic government overreach and these net neutrality rules will stifle market competition, innovation and investment.
Well those critics didn’t just talk. They sued. The internet providers sued the FCC over the net neutrality rules and back then the courts said sorry internet providers the FCC is the expert. And because of the Supreme Court precedent called the chevron doctrine – we have to defer to their expertise and if they say you should be treated as a utility -AKA- a “common carrier” and not a luxury AKA information services then that’s the category you have to live in.
Well by the time all those legal arguments were happening, President Trump had come into office and under his administration the FCC wiped out that Obama-era net neutrality rule. Trump threw it out saying getting rid of it would restore internet freedom for the internet companies and return to the “light touch” government approach. Of course multiple states sued and in a twist the appeals court said to the states sorry the FCC is the expert. And because of the supreme court’s chevron doctrine – we have to defer to their expertise and if they say the internet companies should *now* be moved back into the “information service” bucket then we have to side with them.
But that’s not where it ends. In 2023 under President Biden the FCC said wait – we liked those net neutrality rules let’s go that again. So they again changed the rule and said broadband internet service providers should be treated like all utilities and should be moved back into the “common carriers” bucket. Of course internet providers sued again but this time the cycle was broken.
Why? Because the federal courts no longer had to rely on the supreme court precedent of the chevron doctrine and they no longer had to defer to the expertise of the government or the f-c-c. Because last year – the supreme court threw out the chevron doctrine.
So now under this new lens, when the federal courts looked at whether net neutrality is legal under the 1996 Telecommunications Act – on January second 2025 the Sixth Circuit Court of Appeals said no. It’s not. They said we hold that broadband internet service providers offer only an “information service” under (the law) 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.”
So what will this mean for you? Well – if you live in states like California, Washington, Colorado, Maine or Vermont– it won’t mean a lot. This ruling does not impact your state net neutrality laws. But some states don’t have any. So in those states with no net neutrality laws there will be no federal net neutrality regulations for those internet providers. For the record if net neutrality rules are ever allowed to resurface again, it will likely only be legal if congress passes a new law.
