By Barry Skidelsky
On January 2, 2025, the 6th Circuit Court of Appeals ruled that the Federal Communications Commission (the FCC or Commission) lacked authority to restore certain net neutrality rules last year, thus handing a blow to FCC Democrats and Biden administration officials who had pushed for revived open internet measures.
The 6th Circuit's ruling in MCP 185 et al (https://scholar.google.com/scholar_case?case=2268710297052087092&q=fcc+open+internet&hl=en&scisbd=2&as_sdt=3,33) overturns last year’s FCC decision to reinstate net neutrality rules barring broadband providers from blocking or throttling internet traffic to some websites and from speeding up access to others that pay extra fees.
In doing so, the three-judge panel pointed to Loper Bright (https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf), a Supreme Court decision from last June that scaled back executive agencies’ power by overturning Chevron deference -- the legal doctrine that previously instructed judges to defer to agencies in cases where the law is ambiguous.
Judges are now expected to substitute their own best interpretation of the law rather than defer to relevant government agencies. The Loper Bright decision is only one of several recent U.S. Supreme Court cases that reflect a trend to cut back the power of federal administrative agencies.
The FCC's net neutrality rules were first approved in 2015 under former President Obama, but were repealed under President Trump’s first term in 2017. In April 2024, the Commission voted along partisan lines (as usual) to restore the open internet rules under the then leadership of Democratic FCC Chair Jessica Rosenworcel.
Following Trump's recent reelection to a second term as U.S. President, Rosenworcel announced that she will be leaving the FCC effective on January 20, 2025 (Inauguration Day). On her way out the door, she urged Congress to take up the issue of net neutrality. Whether Congress does this or not, passage of any new federal law to restore net neutrality seems unlikely. More likely, the 6th Circuit's decision will become the subject of an appeal to the U.S. Supreme Court.
Upon nomination of now President-elect Trump, Republican Commissioner Brendan Carr will assume the role as Chair of the FCC. Confirmation by the U.S. Senate is not required for a sitting agency Commissioner to be promoted to Chair. Trump is also expected to announce the appointment of another Republican to join the FCC and serve as one of its 5 FCC Commissioners, which will tilt the balance of FCC power back to a Republican majority (notwithstanding that the FCC is, at least in theory, an independent federal agency).
Advocates of net neutrality rules have argued that they are necessary to ensure a fair and open internet, while critics claim the rules would expand government control over the internet to solve a problem that has not proved especially pervasive.
Carr voted against restoring the open internet rules last year, stating that the FCC “offers up a laundry list of bogus justifications” for bringing broadband service under Title II of the Communications Act.
In the end, whether the internet is treated as an information or telecommunications service under the Communications Act will likely continue to be decided at the FCC along partisan lines, and the issue will continue to bounce up and down to and from federal appellate courts.
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Barry Skidelsky is an accomplished senior Attorney, Strategic Consultant, Arbitrator and Mediator, with strong business acumen, tech savvy and broad legal competencies, who now owns a diverse multi-disciplinary practice focused on the entertainment, media, telecommunications and technology industry sectors.
A former radio broadcaster and Berklee College of Music trained jazz pianist, he previously served as in-house General Counsel, Corporate Secretary and Board Member at several VC and PE backed companies (including a national broadcast program syndicator, an ISP, a CLEC, and a publicly traded ad tech company).
A recognized bar leader, Barry is now Chair of the Sections Caucus of the NYS Bar Association; and, he previously served as Chair of NYSBA's Entertainment Arts and Sports Law section, the NY Chapter of the Federal Communications Bar Association (whose members practice in part before the FCC in Washington DC), and the NYC Bar Associations Telecom Law Committee. Barry works with clients and lawyers nationwide, and he welcomes any opportunity to help.
Contact him at bskidelsky@mindspring.com or 212-832-4800