The industry howled when Barack Obama's Federal Communication Commission (FCC) first proposed that internet providers be treated like telecoms under Title II of the Telecommunications Act. They knew that the federal government's heavy hand would stifle innovation and discourage investment.
Donald Trump's FCC repealed that regulation in 2017, but Biden tried to reimpose it in 2023. On Thursday, a federal appeals court denied the attempt to reimpose net neutrality on the industry.
Outgoing FCC Chairwoman Jessica Rosenworcel, a Democrat, argued "that more stringent regulations would protect consumers and give the federal government more authority to improve cybersecurity safeguards," according to the Wall Street Journal.
The Appeals Court blocked that effort, citing the FCC’s lack of authority under the Communications Act. The recent blockbuster Supreme Court decision that repealed the "Chevron deference," which eliminated agency interference in statutes with ambiguous language, will prevent any more attempts to impose net neutrality on companies.
“Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime,” the judges wrote in their 26-page ruling. Using “the traditional tools of statutory construction,” the court determined that broadband providers offer only an “information service” and are, therefore, not subject to the FCC’s net neutrality policies.
The decision sparked widespread reactions on both sides of the net neutrality debate. FCC Chairwoman Jessica Rosenworcel released a statement calling on Congress to “heed” the calls of consumers and “take up the charge for net neutrality, and put open internet principles in federal law.”
Meanwhile, Evan Swarztrauber, senior vice president at Ax Advocacy and a longtime opponent of Title II regulations, celebrated the ruling on X, calling it a big win for figures such as former FCC Chairman Ajit Pai and “countless others who fought this battle over many years.”
Ajit Pai, FCC chair under Trump, was overjoyed.
For a decade, I’ve argued that so-called “net neutrality” regulations are unlawful (not to mention pointless). Today, the Sixth Circuit held exactly that. You can read the court’s excellent opinion here: https://t.co/3za2KOk7ou
— Ajit Pai (@AjitPai) January 2, 2025
It’s time for regulators and activists to give up… https://t.co/HzEnKUDpal pic.twitter.com/QbFgLEViUQ
The man who will move into the FCC's chairmanship in 2025, Brendan Carr, celebrated the wisdom of the American people.
“President Biden’s entire plan rested on the Chicken Little tactic of persuading Americans that the Internet would break in the absence of these so-called ‘net neutrality’ regulations,” Carr said in a statement. “The American people have now seen through that ruse.”
The one issue where net neutrality might improve the internet that some advocates on both sides argue is necessary is the supposed advantage large bandwidth users currently enjoy because internet companies can slow down internet access for smaller companies as a means of "traffic control." There's little evidence that this happens regularly, and opponents argue that innovation would be stifled under net neutrality rules.
“Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” Rosenworcel said in a statement. “With this decision, it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”
The issue of cyber security has come rushing to the fore in the wake of the extraordinary hacks by China's Salt Typhoon hacking group. It's reportedly the largest hack of the telecom industry in U.S. history. Net Neutrality advocates claim that the regulations are needed to protect American consumers and telecom companies from hostile foreign actors.
There are other ways to achieve cyber security goals without handing control of the internet over to the government. Congress could make targeted changes to the Telecommunications Act that would do a better job of protecting the U.S. from Chinese, Russian, North Korean, and other bad actors.
