• by Wendy Davis  @wendyndavis, July 12, 2024

A federal appeals court on Friday temporarily blocked the Federal Communications Commission's net neutrality rules from taking effect.

In a one-paragraph order, the 6th Circuit Court of Appeals stayed the new rules until August 5. The regulations had been slated to take effect July 22.

The move comes in response to the broadband industry's challenge the FCC's Safeguarding and Security the Open Internet order, passed 3-2 in April. That order reclassified broadband as a “telecommunications” service and imposed some common carrier rules on providers -- including bans on blocking or throttling traffic, and charging higher fees for prioritized delivery.

The Obama-era FCC passed similar rules in 2015, but a Republican-led agency repealed them in 2018.

Broadband provider organizations including NCTA--The Internet and Television Association and USTelecom--The Broadband Association sued last month to block the open internet rules, arguing in papers filed with the 6th Circuit that the FCC lacked grounds to classify broadband as a telecommunications service. Instead, the groups argued, broadband should have remained classified as an “information” service. The distinction is critical because a federal court previously ruled that the FCC can't impose common carrier requirements on “information” services.

The FCC countered in papers filed with the 6th Circuit that broadband “squarely fits” the Telecommunications Act of 1996's definition of a telecommunications service.

That statute defines telecommunications as the “transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information.”

The 6th Circuit on Friday asked both sides to address a 2005 Supreme Court decision -- National Cable and Telecommunication Association vs. Brand X -- that upheld a deregulatory move taken more than 20 years ago by a Republican-led FCC.

The Supreme Court in that case voted 6-3 to defer to the FCC's 2002 decision to classify cable broadband as an information service. Justice Clarence Thomas wrote for the majority that the FCC's decision was reasonable, and therefore entitled to deference under the "Chevron" doctrine. (That doctrine, established in a 1984 ruling, required courts to defer to agencies' interpretations of ambiguous statutes, provided the interpretations were reasonable. The Supreme Court repealed that doctrine this year.) 

Justice Antonin Scalia said in a written dissent that cable broadband should be considered a telecommunications service.

“After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is 'offering' telecommunications,” he wrote.