Experts Question Whether Net Neutrality Will Survive 6th Circuit Review

Joyce noted that the 6th U.S. Circuit Court of Appeals merely stayed the FCC net neutrality order (see 2408010066), and a stay isn’t a final ruling on the merits. However, other legal experts said it appears the 6th Circuit will likely rule against the FCC.

The 6th Circuit, “in a rather short opinion,” found that net neutrality is “likely a major question” and the Communications Act “likely does not plainly authorize what the FCC adopted,” Joyce said. The rest is to be decided, she said. Loper “left intact a very important tenant of administrative jurisprudence and that is, agencies are in fact experts and courts certainly should listen closely to what agencies decide, especially on factual matters.”

Joyce warned against “conflation of questions of law and questions of fact.” The net neutrality debate “has always hinged on definitional issues -- what is broadband, factually?” That’s a question “the FCC has answered several times, and not consistently,” she said. Loper doesn’t eliminate “Skidmore respect” for agency determinations on questions of fact. Skidmore v. Wilkie is a 1944 case holding that an administrative agency's interpretative rules deserve deference based on their persuasiveness.

The FCC has “plenary authority to regulate telecommunications -- that’s not in question,” Joyce said. “I am hopeful that the FCC is able to demonstrate, finally, to the 6th Circuit that its factual determination of what is broadband should not be thrown out.”

A University of Colorado associate law professor warned that SCOTUS could effectively remove net neutrality as a “sword of Damocles” hanging over ISPs. The FCC has used rules as a threat against ISPs if they misbehave, said the professor, Blake Reid. “We might see with that sword really removed … some scarier and more aggressive behavior from ISPs.”

The 6th Circuit appears “pretty likely” to reverse the FCC’s net neutrality decision on the merits, Reid said. There are at least five, and probably six votes at SCOTUS for overturning the rules, he said. SCOTUS doesn’t want the FCC to impose Title II rules “and is going to find a lot of different ways to get there.”

“Round one” in the 6th Circuit “definitely went against” the FCC, Daniel Lyons, professor at Boston College Law School, said. The 6th Circuit’s stay was anchored in its understanding of SCOTUS’ evolving major questions doctrine, he said. The theory is “Congress generally makes the big-picture policy decisions and agencies are only supposed to kind of fill in the details.”

The 6th Circuit is “probably correct” in finding tentatively that open internet is a major question, Lyons said. He added that there’s “no clear language” in the 1996 Telecom Act that says broadband is “unquestionably a Title II service.” In 1996, broadband hadn’t really emerged and Congress was mostly focused on promoting competition among local phone companies, he noted. There are only a few references to the internet in the Telecom Act, he said. Skidmore looks at how persuasive an agency’s decision is and whether an agency has been consistent in its findings, and likely won’t help the FCC on net neutrality, he said.

Reid predicted that the major questions doctrine will become more important than Loper in how the courts review regulations. Major questions is “a sort of fast answer” and a “thumb on the scale” against regulation, and requires a less thorough review than Loper. “The major questions doctrine is likely to carry the day for a while.”

It appears SCOTUS also wants to overturn NCTA v. Brand X, a 2005 case that found an FCC decision about how to regulate ISPs should be given deference, Reid said. Congress will likely find it difficult to legislate on issues like net neutrality, he said. SCOTUS “has got a lot of tools to throw things out that are going to make it hard, even if Congress were inclined to act.”