Net neutrality is on ice

Net neutrality is officially on hold after the Sixth Circuit Court of Appeals blocked the rule from taking effect.

The court granted a stay, extending an earlier temporary pause. This time, net neutrality will be blocked until the court says otherwise after reviewing the petitions from broadband providers who opposed the rule. Those internet service providers (ISPs) successfully showed they would likely succeed on the merits of their challenge, the panel of judges wrote.

“The American public wants an internet that is fast, open, and fair,” Federal Communications Commission Chair Jessica Rosenworcel said in a statement on the stay. “Today’s decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality.”

The FCC voted to restore net neutrality rules earlier this year, after years of back and forth on the rule. Net neutrality is the concept that ISPs shouldn’t discriminate against different websites by blocking or throttling speeds or access. The controversial part of the policy is the mechanism by which the FCC has tried to enforce these rules: by reclassifying ISPs as common carriers under Title II of the Communications Act. ISPs have resisted this reclassification in large part because they say it could lead to even greater government control over their businesses that they say would stifle innovation. For example, they say the classification could be used to impose price regulations, though the FCC has said it’s not planning on it.

While restoring net neutrality was always going to be contentious, its fate looked even bleaker after the Supreme Court gutted Chevron deference, a legal standard where courts deferred to expert agencies in many cases about regulation. Experts predicted net neutrality would be ripe for disruption after Chevron’s downfall, and the judges’ opinion notes that prior courts that upheld net neutrality relied on Chevron.

In a concurring opinion, Chief Judge Jeffrey Sutton writes that the FCC’s flip-flopping on net neutrality between administrations makes it difficult to even apply the lower standard of Skidmore deference, thought to potentially be a fallback now that agencies can no longer rely on Chevron deference. Citing Skidmore, Sutton writes, “An agency’s power to persuade turns on the thoroughness of its reasoning, its technical expertise, and its ‘consistency with earlier and later pronouncements,’” especially those contemporaneous with the statute’s enactment,” he writes. “The problem is, we do not know which group of experts to respect.”

He adds, “The consistency query makes matters worse. The Commission’s ‘intention to reverse course for yet a fourth time’ suggests that its reasoning has more to do with changing presidential administrations than with arriving at the true and durable ‘meaning of the law.’”