In a major victory against internet regulatory overreach under the outgoing Biden administration, a U.S. appeals court on January 2 blocked President Biden’s plan to expand government control over the internet.  Citing Loper Bright, the panel of three judges in the 6th U.S. Circuit Court of Appeals ruled that the FCC does not have the authority to reinstate rules implemented in 2015 by former president Barack Obama.

Notably, the rules were subsequently repealed by the FCC under President Trump in 2017.  However, in April, the FCC voted 3-2 in favor of President Biden’s heavy-handed approach to “net neutrality” related to his July 9, 2021 executive order allegedly “promoting competition in the American economy.”

FCC commissioner Brendan Carr responded to Thursday’s appellate court decision, stating in his January 2 letter that “the court held that the FCC exceeded its authority” with its vote in April.  An excerpt from Carr’s letter indicates that the decision is positive and corrective in terms of limiting Executive Branch overreach and overregulation of the internet.

Today’s decision is a good win for the country. Over the past four years, the Biden Administration has worked to expand the government’s control over every feature of the Internet ecosystem. You can see it in the Biden Administration’s efforts to pressure social media companies into censoring the free speech rights of everyday Americans. You can see it in the Biden Administration’s demand that the FCC adopt “digital equity” rules for the Internet—sweeping regulations that give the Commission nearly limitless powers over the Internet. And you can see it in the Biden Administration’s decision impose so-called “net neutrality” rules by applying Title II or utility-style regulations to the Internet.

Thursday’s decision comes after the Supreme Court  in West Virginia v. EPA (2022) limited the application of Chevron.  SCOTUS ruled that major policy decisions that have significant economic or political impacts should not be left to agencies, but should be decided by Congress.  The 2022 decision is part of a broader trend to scale back Chevron deference, especially when broad regulatory changes are proposed.

In April 2024, Commissioner Carr issued an oral dissenting statement, criticizing the partisan nature of efforts by Presidents Biden and Obama to regulate the internet.  Carr pointed to the longstanding bipartisan agreement reached in the Telecommunications Act of 1996.  At the time, Congress sought to preserve a free and competitive market for the internet, “unfettered by Federal or State regulation.’”

Carr’s dissent highlighted a coordinated effort by the Executive Branch to pressure the FCC into assuming powers that Congress never granted.  He recounted how Obama’s 2014 statement — a call for reclassifying broadband internet under Title II — was followed by intense pressure on the FCC, including protests at FCC chairman Tom Wheeler’s home.  The political pressure eventually led the FCC to adopt full Title II reclassification, despite congressional objections.

Carr goes on to state in his dissent that Obama’s 2014 statement “was the culmination of an unprecedented and coordinated effort by the Executive Branch to pressure an independent agency into grabbing power that the Legislative Branch never said it had delegated.”

Obama allegedly issued his statement because, as FCC emails showed, Wheeler was “just days away from circulating a draft decision” that would “stop short of full Title II classification.”  Carr also explains that the Legislative Branch attempted to shut down Obama’s plan, asking him to “back off Title II.”  However, Obama ignored Congress and proceeded.  The FCC ultimately acquiesced to the president’s demands and “went full Title II” without compromise.

Carr highlighted the way the Legislature and the courts effectively folded under Obama, allowing the Executive Branch to “pressure another component of the government into doing something the President thought would benefit him politically” at the time.

Carr argued that Obama’s actions reflected the kind of power-grab the Framers of the Constitution sought to prevent.

You see, ... [t]he Framers understood the nature of those in power, and they set up a series of checks and balances to avoid government overreach. Chief among them is the Constitution’s separation of powers. ... Congress never passed a law saying that the Internet should be heavily regulated like a utility, nor did it pass one giving the FCC authority to make that monumental determination. The Executive Branch pressured the agency into claiming a power that remained — and remains — with the Legislative Branch.

The FCC has long fluctuated on the issue of net neutrality, largely influenced by shifting political winds.  The appellate court’s January 2 ruling seems to reinforce the U.S. Supreme Court’s position on Chevron, reinforcing the idea that such regulatory matters should be left to Congress, not federal agencies.

In response to the court’s ruling, outgoing FCC chairwoman Jessica Rosenworcel acknowledged that Congress will likely play a more prominent role in future net neutrality decisions.  Rosenworcel has been a staunch proponent of the effort to restore net neutrality rules to re-establish the FCC’s authority over broadband providers through Title II regulations.

Image via Picryl.