The Sixth Circuit Court of Appeals determined in Ohio Telecom Association, et al., v. Federal Communications Commission (FCC) that the FCC had exceeded its authority when it attempted to reinstate net neutrality rules.  The December 31, 2024, decision is a significant victory for businesses and taxpayers who have been jerked around by the continual battle between administrations on how the internet should be regulated.  It also creates certainty for internet service providers when they are investing tens of billions of dollars to deploy broadband across the country. 

Referencing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, the Sixth Circuit Court found that “the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service’ provision of the Communications Act, id. § 153(51).  Nor does the Act permit the FCC to classify mobile broadband – a subset of broadband Internet services – as a ‘commercial mobile service’ under Title III of the Act (and then similarly impose net-neutrality restrictions on those services).  Id. § 332©(1)(A).  We therefore grant the petitions for review and set aside the FCC’s Safeguarding Order.”

The court’s decision rejects the FCC’s effort to overturn the 2017 Restoring Internet Freedom Order (RIFO) and restore the 2015 Open Internet Order.  It was presaged by two former solicitors general under President Obama who wrote in a September 23, 2023 paper, that the decision “would be struck down” and the FCC’s efforts are a “massive waste of resources for the government, industry, and the public, as well as the lost opportunity to pursue more pressing policy goals such as deploying robust broadband service to all Americans.”

As Citizens Against Government Waste has often noted, only Congress should determine how the internet will be regulated.   The basis for such legislation should adhere to the four principles adopted by the FCC in 2005, including allowing consumers to access and choose their own lawful content, have their choice of applications and services, connect to the internet with legal devices, and that competition should be encouraged among providers. 

Connecting to the internet is essential and the Sixth Circuit decision should end the costly administrative ping-pong game on how it should be regulated.  But the only way to ensure that a future FCC does not try to again undo the 2017 RIFO is for Congress to enact legislation that directs the future of the internet and creates permanent certainty for consumers, providers, regulators, and taxpayers.