US ruling buries net neutrality: Internet is not telecommunications

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US net neutrality has been abolished. A federal appeals court in the country ruled on Thursday that internet access does not fall under the term "telecommunications" and that mobile broadband services should be classified as private wireless services such as those provided by cab companies or truck drivers. This means that the regulatory authority FCC (Federal Communications Commission) has no jurisdiction and its net neutrality regulation is ineffective.

With net neutrality, the FCC set three requirements for retail broadband Internet access offered to the mass market, whether fixed or mobile:

• No web blocking of lawful content, applications, services or innocuous devices.
• No throttling of "legal internet traffic" based on lawful content, applications, services or non-harmful devices.
• No preferential treatment of legal internet traffic over other legal internet traffic in exchange for benefits of any kind. Nor should broadband providers give preference to their own content and services.

There was also a more general good conduct rule. These rules were introduced in 2015 when the Democrats under US President Barack Obama had a majority in the FC Commission. An earlier approach from 2005 was repealed in 2010 due to a formal error. Major US network operators also took legal action against the 2015 net neutrality decision, but without success. The decision was legally compliant. Nevertheless, net neutrality was repealed under President Donald Trump, but the FCC reintroduced net neutrality in April 2024 under current President Joe Biden. Once again, network operators took the matter to court. This time successfully, which has little to do with net neutrality itself.

Republicans against regulation per se

While a clear majority of the US population and the Democratic Party are in favor of net neutrality, large network operators and the Republican Party are against it. Their current success is based on an even more profound victory for that part of the Trump movement that wants to abolish or at least decimate authorities in general: It has succeeded in fundamentally weakening federal agencies thanks to a US Supreme Court ruling.

For 40 years, US federal authorities were responsible for interpreting unclear terms in their respective specialist laws, for example the Environmental Protection Agency (EPA) in environmental law, the Federal Aviation Administration (FAA) in aviation law or the FCC in telecoms law. This was clarified by the US Supreme Court in 1984 in the so-called Chevron decision. Where the interpretation of the experts was reasonable or permissible, courts have allowed the result to stand. Legislators have relied on this ever since; after all, the experts in the authorities understand the tricky details better than the politicians.

But in June 2024, the Republican majority in the Supreme Court overturned and reversed this landmark decision(Loper Bright Enterprises v. Raimondo). Since then, courts have had much more power and can reject the interpretation of the specialist authorities even if they were comprehensible and reasonable.

Court: Internet does not fall under "telecommunications"

The Federal Court of Appeal for the Sixth Circuit has now made use of this possibility. It has ruled that broadband Internet access does not fall under the term "telecommunications". In the same decision, the court ruled that mobile broadband services are not a "commercial mobile service" but rather a "private mobile service", such as radio operations of cab dispatch centers or truck drivers. The court thus removed the FCC's ability to impose conditions on broadband services.

"Consumers from across the country have said over and over again that they want an Internet that is fast, open and fair," FCC Chairwoman Jessica Rosenworcel of the Democrats commented on the ruling, "With this decision, it is clear that the House must now hear the call (of consumers), stand up for net neutrality and enact the principles of the open Internet into federal law." The prospects for this are modest, however, as Republicans hold the majority in both chambers of the US parliament. Their leading representative in the FCC, Brendan Carr, portrays net neutrality as "President Biden's Internet power grab".