The U.S. Sixth Circuit Court of Appeals recently heard arguments from internet service providers (ISPs) challenging the Federal Communications Commission’s (FCC) reclassification of broadband as a telecommunications service, a move that reinstated net neutrality rules.

The ISPs argue that Congress, not the FCC, should implement net neutrality, emphasizing that Congress never intended for such rules to be interpreted so broadly. This legal battle follows an August 1, 2024, ruling by the court that temporarily blocked the enforcement of the FCC’s net neutrality rules, originally set to take effect earlier this month.

Net neutrality rules, which prevent ISPs from throttling internet speeds based on content, have long been a contentious issue. These rules are particularly significant for websites that host controversial content, such as those in the adult entertainment industry, which are vulnerable to being slowed down or blocked by ISPs. The broadband industry plaintiffs in the case argue that the rules impose significant burdens on ISPs, especially smaller providers, by forcing them to assess and potentially alter their business practices to ensure compliance. The ISPs claim that this could stifle innovation and reduce incentives for broadband investment.

The U.S. Judicial Panel on Multidistrict Litigation consolidated eight cases into a single proceeding in the Sixth Circuit, recognizing the broad implications of the legal challenges against the FCC’s net neutrality rules.

FCC Chair Jessica Rosenworcel expressed disappointment with the court’s decision to block the rules, stating, “The American public wants an internet that is fast, open, and fair. Today’s decision by the Sixth Circuit is a setback, but we will not give up the fight for net neutrality.”

The debate over net neutrality has also reached Congress, where U.S. Senators Marsha Blackburn (R-Tenn.) and Ted Cruz (R-Texas) introduced a resolution aimed at nullifying the FCC’s order that reinstated net neutrality. The resolution, filed under the Congressional Review Act (CRA), seeks to overturn the FCC’s rules by giving Congress more oversight over regulatory agencies.

In response to the ISPs’ challenge, FCC lawyers defended the agency’s authority to impose net neutrality rules, citing two key Supreme Court decisions. The FCC argued that the 2005 ruling in NCTA v. Brand X Internet Services upheld the agency’s power to classify broadband ISPs and that this precedent remains binding, even after recent rulings that limited the scope of agency authority.

The FCC’s reliance on the Brand X precedent comes despite the case originally supporting ISP deregulation. The current legal battle, however, centers on the re-regulation of ISPs under Title II of the Communications Act to protect an open internet. FCC lawyers argued that the rules are lawful under the recent Loper Bright Enterprises v. Raimondo decision, which, while limiting regulatory bodies, did not overturn previous FCC victories like Brand X.

The ISPs have also raised concerns that the net neutrality rules violate the Supreme Court’s Major Questions Doctrine (MQD), which prevents federal agencies from resolving significant economic and political issues without clear congressional authorization. However, the FCC contends that the Brand X decision shields the agency from MQD challenges, asserting that the Communications Act grants the FCC the authority to regulate broadband services.

As the legal battle over net neutrality continues, the outcome could have far-reaching consequences for both the telecommunications industry and internet users. For now, the fate of net neutrality remains in the hands of the courts, with both the FCC and ISPs gearing up for a prolonged legal showdown.