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A US appeals court has temporarily paused the FCC's reinstatement of net neutrality rules so it can assess the impact of the Supreme Court's recent decision striking down 'Chevron' deference. The court will also consider a challenge from US broadband operators.
The FCC's latest network neutrality rules will have to wait.
The Commission's ability to start enforcing the rules has been delayed temporarily after an appeals court put them on hold July 12 pending a circuit court's review of the precedent set by the US Supreme Court's June 28 decision that struck down the decades-old Chevron deference (a.k.a. the Loper Bright decision).
The striking down of Chevron stands to limit the power and authority of federal agencies such as the FCC in interpreting certain laws that are considered ambiguous. The Chevron doctrine has played a significant role over the years in establishing the FCC's authority to set and enforce network neutrality regulations.
In the wake of the Supreme Court's recent decision, multiple groups representing broadband service providers, including majors such as AT&T, Comcast, Charter Communications and Verizon along with various small and midsized operators, challenged the rules and asked the Sixth Circuit in Cincinnati to permanently stay them as they were set to take effect on July 22. The FCC approved its latest network neutrality rules, which classify broadband as a Title II telecommunications service, in April, a decision that effectively resurrects rules that were pulled back during the Trump administration.
Notably, the 2005 Brand X ruling upholding the FCC's lighter classification of broadband as a Title I information service was based on Chevron, according to New Street policy analyst and former FCC Chief of Staff Blair Levin.
"Chevron has been overturned but Brand X was not overturned," Levin explained in a research note issued earlier today.
Now, the circuit court will spend more time sorting through it all.
"To provide sufficient opportunity to consider the merits of the motion to stay the FCC's order, we conclude that an administrative stay is warranted," a panel of the US Court of Appeals for the Sixth Circuit in Cincinnati explained in its decision to temporarily retain the status quo until at least August 5, 2024. Meanwhile, the court has asked the parties on each side – basically, the FCC and the telecom industry – to file supplemental briefs no later than July 19.
No change to the status quo
Levin noted that the 6th Circuit's administrative stay doesn't determine the ultimate outcome of the Commission's new net neutrality rules.
"Some media interpreted this as a loss for the FCC, in that the Order will not go into effect on the 22nd," Levin wrote. "An administrative stay, however, does not provide any indication of the way the panel is leaning. Rather, it is simply a device to keep the status quo in place while the court takes the necessary time to consider the new legal environment created by the Supreme Court's Loper decision."
Levin stressed that the panel's ruling will remain unknown until early August. The panel "may have a different point of view than the motions panel," he explained.
Levin recently joined Light Reading's "The Divide" podcast to discuss what the end of the Chevron deference could mean for the broadband industry.
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