Net Neutrality Arguments at Sixth Circuit Focus on Law’s Text

While the future of net neutrality may hinge on the Sixth Circuit’s view of it under the major questions doctrine, one judge said Thursday that he was more interested in whether internet service providers can mess with website loading speeds given the text of the law in question.

Judge Raymond M. Kethledge of the US Court of Appeals for the Sixth Circuit pushed internet industry groups, the Federal Communications Commission, and organizations supporting the agency on specific words and phrases in the Telecommunications Act of 1996.

“After 16 years as a judge, let’s just talk about the words,” said Kethledge, an appointee of President George W. Bush. He homed in on whether the text indicates how much regulation providers should face, and tried to compare it to how provider systems work.

This discussion, with Kethledge taking the lead, dominated the roughly hour-long oral arguments in front of a three-judge panel in Cincinnati. Many predicted the arguments would focus heavily on the major questions doctrine, which states a law mustn’t be interpreted to give an agency the power to decide major issues unless it specifically says as much.

Jeffrey B. Wall of Sullivan & Cromwell LLP, representing the industry groups, argued the doctrine should lead to their win. FCC Deputy General Counsel Jacob M. Lewis countered that the statute’s text clearly shows that the agency properly applied the doctrine when classifying broadband as the more heavily-regulated “telecommunications service.”

Ongoing Dispute

The arguments are the latest in years of legal and regulatory wrangling over the issue.

The FCC passed its rules in April in a party-line vote, effectively reversing a Trump-era decision to classify broadband as the lighter-regulated “information service.” The rules, which essentially revert to ones the agency put in place during the Obama administration, prevent internet service providers like Comcast Corp. and AT&T Inc. from blocking or slowing traffic from competitors. They also forbid telecommunications companies from giving preferential treatment through “fast lanes” to preferred customers.

Net neutrality advocates have claimed the rules are needed to prevent unnecessary and potentially harmful speed throttling. Providers and many Republicans oppose the rules, saying the broadband market works well and that the new rules invite government interference in a system where throttling hasn’t been a problem.

“Simply put, subjecting that entire industry to public utility-style regulation presents a major question, as a panel of this court already concluded,” Wall said. He added that nobody considered broadband as a telecommunications service until 2015, and that the FCC is “champing at the bit” to enact more regulations on providers.

A different Sixth Circuit panel blocked the rules while the legal challenge is ongoing, saying arguments that Congress must address the issue were likely to succeed.

Major Questions

While the text of the law took center stage Thursday, the major questions doctrine did come up as Judges Richard Allen Griffin and John K. Bush pushed attorneys for the industry groups and the FCC on the issue. Griffin asked Lewis on whether the FCC’s shifting views on net neutrality signal that the issue is best left for Congress to decide.

“Doesn’t it show that the statute is ambiguous, that it’s not clear?” asked Griffin, an appointee of President George W. Bush.

The attorney replied that the doctrine doesn’t apply and added that it’s still clear the FCC has the authority to classify broadband internet.

Lewis added that “the petitioners are confusing the highway with the destination.” The providers “bring you to the internet, but they are not the internet,” he said.

The petitioners are also represented by Wiley Rein LLP, Lerman Senter PLLC, Gibson, Dunn & Crutcher LLP, Latham & Watkins LLP, and MoloLamken LLP. The FCC is represented in-house. The US is represented by the Justice Department.

The case is MCP No. 185 Open Internet Rule (FCC 24-52), 6th Cir., No. 24-7000, oral argument 10/31/24.