• by Wendy Davis  @wendyndavis, August 1, 2024

A federal appellate court on Thursday extended an order blocking the Federal Communications Commission's net-neutrality rules from taking effect.

In a 14-page ruling, a three-judge panel of the 6th Circuit Court of Appeals said the FCC likely lacked authority to issue the Safeguarding and Security the Open Internet order, which reclassified broadband as a “telecommunications” service and imposed some common carrier rules on providers -- including bans on blocking or throttling traffic, and charging higher fees for prioritized delivery.

The Obama-era FCC passed a similar order in 2015, but a Republican-led agency repealed it in 2018.

Broadband provider organizations including NCTA--The Internet and Television Association and USTelecom--The Broadband Association sued to block the rules, arguing that the FCC lacked grounds to classify broadband as a telecommunications service. Instead, the groups argued, broadband should have remained classified as an “information” service. The distinction is critical because the FCC can't impose common carrier requirements on “information” services.

A panel of the 6th Circuit temporarily stayed the order last month. That stay was set to expire August 5.

The appellate judges said in Thursday's ruling that the broadband groups are likely to succeed in their challenge to the rules, writing that the order “implicates a major question,” and that the FCC “has failed to satisfy the high bar for imposing such regulations.”

In 2022, the Supreme Court curtailed federal agencies' ability to issue regulations on “major questions” of policy. The court in that case struck down environmental regulations that had been passed by the Environmental Protection Agency.

“Net neutrality is likely a major question requiring clear congressional authorization,” the appellate panel wrote, adding that the order deals with an issue of “vast economic and political significance.”

“Congress and state legislatures have engaged in decades of debates over whether and how to require net neutrality,” the judges wrote.

“Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power, and petitioners have accordingly shown that they are likely to succeed on the merits,” the panel added.

FCC Chair Jessica Rosenworcel called Thursday's decision a “setback,” but said the agency “will not give up the fight for net neutrality.”

“The American public wants an internet that is fast, open, and fair,” she stated.