Sixth Circuit Rejects FCC Authority Over ISPs

On January 2, the Sixth U.S. Circuit Court of Appeals issued a decision in In re: MCP No. 185 Open Internet Rule (FCC 24-52) or Ohio Telecom Association v. FCC overturning the Federal Communications Commission’s 2024 “Net Neutrality” rules due to alleged lack of statutory authority. EPIC supported the FCC’s rules because they would bring long-overdue accountability for the data privacy and security of consumers using the internet, likely including ending the sale of location data without consumer consent. This is a significant blow to consumer privacy from predation by internet service providers (ISPs), especially in light of the recent Federal Trade Commission staff report outlining the data broker and consumer profiling practices of ISPs.

After Loper Bright Enterprises v. Raimondo, courts no longer need to give federal agencies Chevron deference to their interpretations of many the statutes they implement, meaning here that the Sixth Circuit could go directly to the text of the Communications Act and determine that Congress did not give the FCC the authority to classify broadband as a “telecommunications service.” Whether a technology is classified as a telecommunications service determines which agency has authority over the corresponding industry and what authorities that agency can use to regulate that industry. Prior to this FCC rule, consumer protection authority over ISPs was shared between the FCC and the FTC, with state and federal agencies needing to sometimes overcome jurisdictional challenges when they attempted to regulate ISPs. By putting broadband out of reach of the FCC’s long-established regulatory authority over telecommunications services, the Sixth Circuit invalidated the agency’s recent Net Neutrality order and thereby reintroduced these jurisdictional challenges.

EPIC has long-supported a robust role for the FCC in protecting online privacy, especially as it relates to location data and preventing unwanted calls and texts.