D.C. Memo: Sixth Circuit Hits Pause on FCC’s Net Neutrality Rules
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Net Neutrality: Was it just a bump in the road or a bad omen for the FCC? On Friday, a federal court in Ohio blocked the FCC’s Net Neutrality rules from taking effect on July 22. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati said it needed additional time - until Aug. 5 - to consider a request by national and regional ISP trade associations to stay the rules while the case is being litigated, which could take a couple of years. "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. The FCC's order is hereby temporarily stayed until August 5, 2024," the panel said. Former Republican FCC Commissioner Robert McDowell, in a post on his X feed, called the decision “big” and a sign the FCC’s rules won’t go into effect. “The decision inherently signals the court’s determination of appellants’ likelihood of success on the merits against the FCC,” McDowell said. Attorney Andrew Schwartzman, who is representing the Benton Institute for Broadband & Society in the case on the side of the FCC, did not see it the same way as McDowell. "The Court wants more time, and more briefs," he said. “An administrative stay is not based on the merits of the motion, but just leaves things in place so the court can consider the matter. It does not indicate much, if anything, one way or the other." One FCC official declined to comment while several others did not respond to emails. The panel – two appointed by Democrats and one by a Republican – gave the FCC and ISP groups until July 19 to file new briefs "with respect to the application of stare decisis and National Cable & Telecom. Assn. v. Brand X Internet Servs." In Brand X, the Supreme Court in 2005 upheld the FCC in classifying cable modem service as an unregulated information service.
