By: Sam Schroeder
For over twenty years, net neutrality has been at the forefront of a fight for the freedom of internet access.[1] Net neutrality refers to FCC rules that require that internet service providers (“ISPs”) provide equal internet access to all websites.[2] Without net neutrality, ISPs can set up prioritized internet ‘fast lanes’ that swallow available bandwidth.[3] Through a technique called ‘network slicing,’ ISPs can designate premium price lanes for specific websites or services from streaming to gaming.[4]
Net neutrality, a widely popular rule, has large bipartisan majorities supporting the policy.[5] Infamously, former FCC chairman Ajit Pai led a successful effort to repeal the net neutrality rules in late 2017, sparking outrage from every corner of the internet.[6] In April 2024, the FCC reversed its position and reinstated net neutrality rules, which became effective a few months later.[7] Before they were able to become effective, an order from the Sixth Circuit Court halted the implementation of the rules as they considered a legal challenge from ISPs.[8] Finally, after twenty years, the Sixth Circuit Court put the final nail in the coffin for net neutrality, ruling that the FCC does not have the statutory authority to implement the policy.[9]
Under the Communications Act of 1934, the FCC can broadly regulate services classified as “telecommunications services” but have significantly less statutory authority for regulating services classified as “information services.”[10] Telecommunications services are defined as the transmission of data between two points of the users’ choosing, without the manipulation of said data.[11] These services are regulated under the strongest law the FCC has, Title II of the Communications Act.[12] Information services, on the other hand, involve “[t]he offering or capability” of manipulating or storing data, such as third-party websites like Netflix or Gmail.[13] Both of these terms are mutually exclusive categories. Though information services typically have components of telecommunications services, information services offer consumers the capability to do more.[14]
Previously, net neutrality rulings were limited by the Chevron deference doctrine, which required courts to defer to the statutory interpretations of the agencies that are involved.[15] In the most recent case, the Sixth Circuit Court was able to overrule the FCC’s statutory interpretations under the new doctrine set forth by Loper Bright.[16] The court examined the FCC’s decision that ISPs are a telecommunications service, and held that ISPs clearly provide the “capability” to receive and manipulate third party content.[17] Using this reasoning, the court found that ISPs are information services, thus making them outside the purview of Title II of the Communications Act.[18] Because of this, the FCC can no longer implement regulations like net neutrality on ISPs, effectively killing the policy absent an act of Congress.[19]
Net neutrality affects every business and consumer in the country as ISPs can delegate bandwidth to ‘fast lanes,’ potentially throttling every other use of the internet.[20] Higher fees could lead to small businesses being shut out while corporate giants feast on the opportunity.[21] Luckily, though net neutrality is lost on a national scale, many states have implemented local net neutrality rules that may deter ISPs from pushing these changes.[22] Additionally, the overwhelming popular support for net neutrality may force Congress’s hand as ISPs begin to implement changes.[23] Though the net neutrality is dead for now, there is still hope for a triumphant return.
[1] See generally Devin Coldewey, Commission Impossible: How and Why the FCC Created Net Neutrality, TechCrunch (May 30, 2017, 1:38 PM), https://techcrunch.com/2017/05/30/commission-impossible-how-and-why-the-fcc-created-net-neutrality/ (explaining the history of Net Neutrality).
[2] Klint Finley, The WIRED Guide to Net Neutrality, Wired (May 5, 2020, 7:00 AM), https://www.wired.com/story/guide-net-neutrality/.
[3] Mark Weinstein, Net Neutrality is Dead — Welcome to the Age of ‘Pay-to-Play’ and Premium Access, The Hill (Mar. 2, 2025, 7:00 AM), https://thehill.com/opinion/technology/5169139-fcc-net-neutrality-fast-lanes/.
[4] Id.
[5] See Three-in-Four Voters Favor Reinstating Net Neutrality, Univ. of Md. Program for Pub. Consultation (May 26, 2022), https://publicconsultation.org/united-states/three-in-four-voters-favor-reinstating-net-neutrality/.
[6] See Cecilia Kang, F.C.C. Repeals Net Neutrality Rules, N.Y. Times (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html.
[7] Emma Bowman, Net Neutrality is Back: U.S. Promises Fast, Safe and Reliable Internet for All, NPR (Apr. 26, 2024, 2:18 PM), https://www.npr.org/2024/04/26/1247393656/net-neutrality-explained-fcc.
[8] David Shepardson, Net Neutrality Rules Reinstatement Temporarily Halted by US Appeals Court, Reuters, July 12, 2024, https://www.reuters.com/legal/us-court-temporarily-puts-net-neutrality-rules-reinstatement-hold-2024-07-12/.
[9] See generally In re MCP No. 185, 124 F.4th 993 (6th Cir. 2025) (holding that the FCC has overstepped its statutory authority by regulating ISPs as telecommunications carriers).
[10] See Coldewey, supra note 1.
[11] See 47 U.S.C. § 153(53).
[12] See Coldewey, supra note 1.
[13] See 47 U.S.C. § 153(24).
[14] See 124 F.4th at 1007.
[15] See id. at 997 (“But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute.”); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
[16] See id. See generally Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) (overruling Chevron doctrine).
[17] See 124 F.4th at 1003-04 (for an interesting rebuttal of this point from twenty years earlier, see Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1007 (2005) (Scalia, J., dissenting)).
[18] See id. at 1009 (“In sum, applying the plain meaning of § 153(24) to the interconnected nature of the Internet, we conclude that Broadband Internet Service Providers at the very least “offer” consumers the “capability” of “retrieving” “information via telecommunications.” Accordingly, the FCC’s contrary conclusion is unlawful.”).
[19] See id.
[20] See Weinstein, supra note 3.
[21] See id.
[22] See Meg James, Federal Court Decision Won’t Change California Net Neutrality Law, L.A. Times (Jan. 3, 2025, 2:12 PM), https://www.latimes.com/entertainment-arts/business/story/2025-01-03/california-has-net-neutrality-despite-6th-circuit-decision.
[23] See Univ. of Md., supra note 5.
