CRS on Loper Bright and Net Neutrality

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| February 4, 2025

US Capitol at early morning

No More Deference: Sixth Circuit Relies on Loper Bright to Strike Down Net Neutrality Rules

Congressional Research Service, Feb. 3, 2025

On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) vacated the Federal Communications Commission’s (FCC’s) most recent net neutrality rules. The court held that, under the Communications Act of 1934, as amended (the Act), the FCC must treat broadband internet access service (BIAS) as a lightly regulated “information service” instead of a highly regulated telecommunications service.” The court similarly held that BIAS delivered via mobile phones (mobile BIAS) is a lightly regulated “private mobile service” under the Act instead of a highly regulated “commercial mobile service.” Because the FCC’s authority over BIAS and mobile BIAS is minimal, the court struck down the FCC’s net neutrality rules.

The decision marks the first time that a court decided for itself—without deferring to the FCC—how BIAS should be treated under the Act. In prior cases, courts relied on the Chevron doctrine to defer to the FCC’s reasonable interpretations when faced with ambiguous statutory language. The era of Chevron deference ended, however, with the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, leaving to the courts the task of definitively interpreting the meaning of statutes enforced by a federal agency.

The Sixth Circuit’s decision also addressed a lingering question: To what extent are lower courts bound by prior cases decided under the Chevron doctrine? In a 2005 decision, NCTA v. Brand X Internet Services, the Supreme Court had applied Chevron to uphold a prior FCC order classifying BIAS as an information service. As a result, litigants debated whether the Sixth Circuit was bound by this decision when interpreting the same statutory terms or whether it could approach the statutory interpretation question with a blank slate. The Sixth Circuit held it had a blank slate. It was not bound by Brand X because, while the interpretive question was the same, the particular agency order was new.