• by Wendy Davis  @wendyndavis, February 18, 2025

Open internet advocates on Tuesday urged a federal appellate court to reconsider a recent ruling striking down net neutrality rules that would have prohibited broadband providers from blocking traffic based on its content.

That decision, issued last month by a three-judge 6th Circuit Court of Appeals, conflicts with the federal communications law as well as decisions by other appellate courts, Free Press, Public Knowledge, Open Technology Institute and Benton Institute for Broadband & Society argue in a petition seeking a new hearing in front of the entire 6th Circuit.

The organizations' request comes in a battle over the FCC's 2024 net neutrality order, which reclassified broadband as a “telecommunications” service, and imposed some common-carrier restrictions on providers -- including bans on blocking or throttling content, and on charging higher fees for prioritized delivery.

The order was passed by a politically divided agency, with Brendan Carr, the current chair, dissenting.

Net neutrality proponents have long argued that open internet regulations will help prevent cable companies and telecoms from thwarting competition from streaming video companies, as well as from censoring material.

But cable companies and telecoms claim regulations will discourage providers from innovating.

Soon after the FCC issued the order, broadband industry groups sued to invalidate the rules, arguing the FCC lacked authority for the regulations.

The FCC, which was still under Democratic leadership last year, defended the rules in court. Free Press and other advocacy groups intervened in the case and also defended the rules.

Last month, a three-judge panel of the 6th Circuit Court of Appeals struck down the FCC's order, ruling that broadband should be considered an “information” service, not a telecommunications service.

“It makes sense to exclusively classify integrated services, including those offered by broadband internet service providers, as information services,” the judges wrote.

That holding was fatal to the net neutrality rules because the FCC can only impose common carrier obligations on providers of telecommunications services.

The current FCC is not appealing that order. On the contrary, Carr called the panel's decision “a good win for the country.”

But Free Press and the other intervenors argue in their petition for a new hearing that the broadband service should be considered a telecommunications service as that term is defined in the Communications Act. That law defines telecommunications as “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.”

The advocacy groups also note that the District of Columbia Circuit Court previously upheld the FCC's Obama-era net neutrality rules, which also classified broadband as a telecommunications service. (Those prior rules were revoked in 2017, when Republican Ajit Pai led the agency. The rules passed in 2024 were largely similar to the ones issued in 2017.)

Several states, including California, currently have their own version of net neutrality laws.

The California measure not only prohibits broadband providers from blocking or throttling traffic, and charging higher fees for fast lane service, but also bars providers from exempting their own video streams from consumers' data caps.

That law was upheld by the 9th Circuit Court of Appeals in 2022.