Attorneys for the FCC and groups representing the broadband industry argued about the future of net neutrality to a panel of federal appeals court judges on Thursday.
The rules reclassify ISPs as common carriers, barring them from selectively throttling web traffic in favor of paid content. After being enacted under President Barack Obama and repealed under President Donald Trump, they were reinstated by President Biden’s FCC in April, by a split 3-2 vote, Inside Towers reported.
Industry groups representing companies such as AT&T (NYSE: T), Comcast (NASDAQ: CMCSA) and Verizon (NYSE: VZ) sued, and a judge blocked the rules from taking effect. A different Sixth Circuit panel said arguments that Congress must address the issue were likely to succeed, reported Bloomberg.
During oral arguments before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, two George W. Bush-appointed judges and one Trump appointee probed both sides about the nuanced interpretations of a “telecommunications service.” But the bigger question is whether the FCC still has the authority to enforce rules like net neutrality after two Supreme Court rulings that gutted regulators’ powers, according to The Verge.
Much of the hearing focused on the significance of the “major questions” doctrine, which says Congress must grant agencies the power to make certain decisions, and the end of a doctrine known as Chevron deference, which instructed judges to defer to agency expertise. In a post-Chevron world, courts have more liberty to make their own determinations about whether a policy like net neutrality should exist. While net neutrality has always faced its challenges, these changes make its path to implementation harder.
In court, Jeffrey Wall — arguing on behalf of the broadband industry — characterized the FCC’s rules as a power grab that strained the limits of its authority. The FCC attorney Jacob Lewis argued it’s obvious Congress intended to let the agency define what counts as a Title II telecommunications service, as opposed to a more loosely regulated Title I information service, noted The Verge.
Now it’s up to the judges to decide whether the FCC has the authority to enforce its latest iteration of net neutrality rules. Whichever side loses could ask the full slate of Sixth Circuit judges to hear the case before moving on to the Supreme Court.
Even if the Sixth Circuit gives net neutrality the green light, a lot hinges on who wins the presidential election next week. It was Trump-era FCC Chair Ajit Pai who first repealed the net neutrality rules, Inside Towers reported.
By Leslie Stimson, Inside Towers Washington Bureau Chief
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