Sixth circuit stays net neutrality as FCC chair vows to 'not give up'

The sixth circuit court has stayed the FCC's net neutrality rules, in a unanimous ruling issued Thursday, August 1. The news was met with cheers from the industry lobbyists that challenged the net neutrality order, and jeers from broadband consumer advocates and FCC Chairwoman Jessica Rosenworcel who called the ruling a "setback" and vowed to fight on.

"The American public wants an internet that is fast, open, and fair. Today's decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality," said Rosenworcel in a statement on Thursday following the court ruling.

The FCC passed its net neutrality order, which reclassified broadband companies as Title II providers, in April, but the agency was swiftly brought to court by lobbying groups representing large national ISPs. The sixth circuit issued a temporary stay in mid-July, through August 5, pending further review.

That temporary pause came just after the Supreme Court's ruling striking down Chevron deference. Indeed, Thursday's sixth circuit ruling pausing net neutrality points to Chevron as the justification for prior rulings that upheld it.

Now what?

The sixth circuit decision officially stays the FCC's net neutrality order until the court hears a case on the merits. That hearing is planned for late October.

Related:The Divide: Blair Levin on what the end of Chevron deference means for broadband

In a series of statements, broadband advocates and consumer interest groups expressed disappointment in the ruling but optimism for the final outcome.

However, in a note for New Street Research, Blair Levin, policy analyst and former FCC official, suggested otherwise.

"The ISPs are likely to win the case, with the Sixth Circuit likely to formally overturn the FCC order in the first part of next year," wrote Levin, pointing in part to the court's reliance on the major questions doctrine.

Indeed, as the judges wrote in their ruling: "The petitioners are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations."

In a joint statement following the sixth circuit ruling, ISP groups that brought the suit – ACA Connects, CTIA, NCTA and USTelecom – celebrated their victory:

"By all measures, broadband in the U.S. has been thriving under a light-touch regulatory framework. We're pleased that the Sixth Circuit has preserved that framework during the appeal process, thus shielding providers and their customers from the many harms that would stem from attempting to comply with the FCC's ill-fitting and ambiguous common carrier mandates," they wrote.