Sixth Circuit Temporarily Stalls FCC’s Net Neutrality Order

By Lawson Faulkner

Last Friday, the U.S. Court of Appeals for Sixth Circuit restored a lower court’s stay of the FCC’s so-called net neutrality rules, marking a significant setback for the agency’s agenda. Introduced in May, these rules will discourage investment and may slow the pace of improved internet speeds, as our research has shown.

Originally set to take effect on July 22, the FCC’s ruling would reclassify ISPs as common carriers under Title II of the Communications Act, barring businesses from implementing free-market solutions for data flows. According to Reuters, ISPs would therefore be prohibited from “blocking or slowing down traffic to certain websites, or engaging in paid prioritization of lawful content”, ensuring that bandwidth bottlenecks will proliferate in the name of egalitarian internet access. However, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati has temporarily stayed the FCC ruling until August 5.

Numerous ISPs have pushed back on the notion that the internet should be regulated as a utility. In a brief filed on July 8th, the ISPs stated that “the only consistent thing about the FCC’s view of broadband – since 2015, anyway – has been its change with each new presidential administration.” Amid these shifting ideological tides, the coalition has called on the FCC to abstain from utility-style regulation until Congress enacts guiding legislation.

Indeed, since 2015, the debate surrounding net neutrality has become a regulatory ping-pong ball. Beginning with the Obama administration’s Open Internet Order, ISPs were forbidden from granting preferential broadband access to paying customers for nearly three years. In 2017, the Trump administration rolled back these regulations, arguing utility-style regulation was detrimental to American broadband innovation. Nevertheless, the Biden administration has advocated for a net neutrality revival, signing a 2021 executive order encouraging the FCC to reinstate the Obama-era rulemaking despite improved outcomes under the Trump-era order.

While the net neutrality debate continues to rage, policymakers would be wise to examine the statistical legacy of these regulatory shifts. According to speed tester Ookla, median download speeds for mobile broadband increased by 250% in the three years following the Trump administration’s 2017 net neutrality repeal. Similarly, fixed broadband increased by 190%. Speeds only increased by 44% in the three years that net neutrality was in effect. This stark contrast outlines the high stakes of a net neutrality revival, which will ensure that future generations of broadband innovation will be crushed under the weight of utility-style regulation. While temporary, this judicial stay gives FCC officials an important opportunity to consider the implications of their misguided agenda. Rather than creating a freer and fairer internet, regulators will instead be condemning ISPs to the ninth circle of an innovator’s Hell: utility-style regulation. The FCC should refrain from pursuing its net neutrality agenda until it receives explicit guidance from Congress, lest another era of broadband innovation be extinguished by administrative overreach.