Industry Groups and FCC File Briefs in Net Neutrality Case Following Loper Bright

On July 8, 2024, the Federal Communications Commission (FCC) and a group of Internet Service Providers, represented by national and regional trade associations, filed supplemental briefs with the U.S. Court of Appeals for the Sixth Circuit in In re MCP NO. 185.

The Sixth Circuit is considering challenges to the FCC's Safeguarding and Securing the Open Internet Order (Open Internet Order), which reclassified broadband Internet access service as a telecommunications service under Title II of the Communications Act of 1934, as amended. The Order is scheduled to take effect on July 22, 2024, but the ISP representatives have asked for a stay. The Sixth Circuit requested on June 28 that the parties address the implications of the Supreme Court's decision to overturn the Chevron Doctrine in Loper Bright Enterprises v. Raimondo for the petitioners' motion to stay enforcement.

In its supplemental brief, the FCC argued that "Loper Bright has no direct relevance here because the [Open Internet Order] under review does not turn or rely on Chevron. Instead, the Order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction-exactly as Loper Bright instructs." The FCC explained that the decision in fact "reinforces the arguments set forth in our stay opposition," because it "recognizes that a court's legal interpretations may properly be informed by an agency's expert assessment of predicate factual and technical issues within the agency's specialized knowledge and expertise, as well as by roughly contemporaneous understandings of a statute by those closely familiar with it." The FCC also argued that "Loper Bright does not address petitioners' failure to establish that they will suffer imminent and irreparable harm during the time it takes to decide this appeal," which would be required for them to be granted a stay pending review.

In their supplemental brief, Ohio Cable Telecommunications Association and other petitioners argued the Sixth Circuit should stay the Open Internet Order, because they would likely succeed on the merits of their challenge in light of Loper Bright and the FCC's inconsistent approach to Internet regulation. First, they argued that the Net Neutrality rules "trigger[] and flunk[] the major-questions doctrine," because "Court expressly reaffirmed [in Loper Bright] that it expects Congress to delegate authority of 'deep "economic and political significance"' '"expressly" if at all.'" The petitioners further argued that "although the Commission has barely invoked Chevron deference," the decision established that the Open Internet Order is not entitled to such deference. Third, the petitioners contend that the changing views of the FCC on how to classify broadband Internet access are the opposite of "'contemporaneous[]' and 'consistent' agency interpretations" that the Supreme Court said may be entitled to greater weight.

The Sixth Circuit is expected to act on the ISP representatives' request for a stay by July 15.