Sixth Circuit: Plaintiffs “Likely to Succeed” in Net Neutrality Challenge

By James Erwin

The Biden Administration’s restoration of net neutrality has always been an attempt to seize control of the communications industry with little evidence that that it would lower prices or improve speeds. Now the Sixth Circuit Court of Appeals has issued a stay for the net neutrality order on the grounds that it is likely to be overturned.

The Sixth Circuit originally issued an administrative stay on July 16 that was set to expire on August 5, preventing the order from taking effect on July 22 as intended. This came about as part of a lawsuit where broadband providers had sued the agency to enjoin the rules on the grounds that the FCC did not have authority from Congress to reclassify broadband as a Title II service. In the opening paragraph of the Sixth Circuit’s order issued yesterday, the court decided that “Because the broadband providers have shown that they are likely to succeed on the merits and that the equities support them, we grant the stay.”

The three-judge panel making the decision consisted of Chief Judge Jeffrey Sutton, a George W. Bush appointee, and Judges Eric Clay and Stephanie Davis, who are Clinton and Biden appointees, respectively.

The ruling is significant for two reasons: the likelihood of success and irreparable injury findings. On the latter, the court recognized the significant and irreparable harm that the net neutrality order would cause to broadband providers, including delays in product rollouts and competitive disadvantages. Effectively, the court recognized that net neutrality is bad for innovation, competition, and consumer experience.

In finding these irreparable injuries, the court also recognized that these rules have a significant impact on the industry in question. Under the major questions doctrine, which the Supreme Court has recently strengthened and reaffirmed, bureaucrats cannot make rules dealing with “major questions” of law without clear Congressional authorization. In this case, determining that broadband service is a Title II telecommunications service, rather than a Title I information service as it was historically considered, is a major question of law that would have a significant impact on the industry.

The ruling affirms that the provider plaintiffs are likely to succeed on the merits of their major questions claim, meaning it is likely that the Sixth Circuit will rule in their favor when the case is fully resolved. It is therefore necessary to delay the implementation of the rules until that happens. It also predicts that if the FCC appeals this decision to the Supreme Court, the high court will agree with the Appeals Court.

This is a win for the rule of law, a strike against bureaucratic power-grabs, and a victory for those who oppose this heavy-handed policy that is ultimately about controlling the internet and not delivering results for consumers. We look forward to the final ruling striking the Title II order down permanently.