Cincinnati, Ohio civil litigation lawyers represented the parties challenging net neutrality policies adopted by the FCC.



As Congress has said, the Internet has "flourished, to the benefit of all Americans, with a

minimum of government regulation.” 47 U.S.C. § 230(a)(4). The Federal Communications

Commission largely followed this command from the Telecommunications Act of 1996 by

regulating the Internet with a light touch for nearly 15 years after enactment. But since, the

FCC's approach has been anything but consistent.



Beginning in the late 2000s, the FCC undertook several attempts to impose so-called "net

neutrality policies,” which prohibit Broadband Internet Service Providers from controlling users'Internet access—by varying speeds or blocking connections to third-party websites, for

example—based on content, commercial agreements, and other reasons a provider might want to

manage a user's Internet experience. Those efforts culminated in 2015, when the FCC

concluded for the first time that Broadband Internet Service Providers offer to consumers a

"telecommunications service” and thus are common carriers—and subject to extensive regulation

(including net-neutrality restrictions)—under Title II of the Communications Act. Id. § 153(51).

Corresponding with a change in administrations, in 2018, the FCC rescinded its 2015

determination and instead reverted to its historical hands-off approach to Internet regulation by

concluding that Broadband Internet Service Providers offered only "information service.” Id.

§ 153(24). That change lifted the net-neutrality requirements.

The D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the

now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as

"permissible” under the Act.



Today we consider the latest FCC order, issued in 2024, which resurrected the FCC's

heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open

Internet Order, Broadband Internet Service Providers are again deemed to offer a

"telecommunications service” under Title II and therefore must abide by net-neutrality

principles. 89 Fed. Reg. 45404 (May 22, 2024) (to be codified at 47 C.F.R. pts. 8, 20)

[hereinafter Safeguarding Order]. But unlike past challenges that the D.C. Circuit considered

under Chevron, we no longer afford deference to the FCC's reading of the statute. Loper Bright

Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837 (1984)). Instead, our task is to determine "the best reading of

the statute” in the first instance. Id.



Using "the traditional tools of statutory construction,” id., we hold that Broadband

Internet Service Providers offer only an "information service” under 47 U.S.C. § 153(24), and

therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies

through the "telecommunications service” provision of the Communications Act,Nos. 24-7000, et al. In re MCP No. 185: FCC

In the Matter of Safeguarding and Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a "commercial mobile service” under Title III of the Act (and then similarly impose

net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions

for review and set aside the FCC's Safeguarding Order.

FCC Safeguarding Order set aside.