The fate of net neutrality in the US still hangs in the balance, with a decision now unlikely before the November presidential election.

Back in the Before Times, the Obama administration enacted net neutrality, and the subsequent Trump White House overturned it all.

In April this year, under President Biden, the US Federal Communications Commission (FCC) voted 3-2 to put net neutrality back in action, by classifying internet providers as common carriers.

That would require ISPs to generally treat all data in transit equally rather than, say, allowing certain companies to pay to have their apps and websites' traffic prioritized over rivals.

This open-internet rule was supposed to go into effect again in July, but was swiftly challenged by broadband providers and others. They asked the court of appeals for the sixth circuit to put a hold on the rule change while the legality of the situation was argued over.

The appeals judges initially agreed to pause the changeover until August 5, and have now kicked it further down the road: The court will keep that pause in place, and hear oral arguments from each side in late October and early November before making any further judgments, with filings also expected to be submitted this month and next. We're thus unlikely to get a decision before the November 5 election.

"Several broadband providers have asked this court to stay the final rule pending review of their petitions," an order from the appeals court dated August 1 [PDF] reads. "Because the broadband providers have shown they are likely to succeed on the merits and the equities support them, we grant the stay."

We cannot assume that Congress granted the commission this sweeping power

The decision notes people have been arguing over the legality of net neutrality in America for nearly 20 years, and decisions by the FCC on this subject seem to be dependent on political will rather than regulatory assessments.

In which case, net neutrality ought to be enshrined in law, and not decided by the communications watchdog, the court suggested.

"Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the commission this sweeping power, and petitioners have accordingly shown that they are likely to succeed on the merits," it wrote.

That follows a Supreme Court ruling in June that clears the way for judges to overrule interpretations of the law by the FCC and other federal bodies.

When Congress passes broad or ambiguous legislation, watchdogs can find themselves having to use their best judgement and fill in the blanks, so to speak, to put those loosely written laws into practice. Rather than automatically defer to those regulators' interpretations if an argument over those laws and rules comes to court, judges can now make their own decisions and override a watchdog's position.

And that means the FCC may find its interpretation of American telecommunications law, an interpretation that allows it to enforce neutrality, is overruled by the courts, stemming from the ISPs' arguments. In which case, no net neutrality until Congress says so.

"The American public wants an internet that is fast, open, and fair," said FCC boss Jessica Rosenworcel. "Today’s decision by the Sixth Circuit is a setback but we will not give up the fight for net neutrality."

That the issue of net neutrality has been a political football isn't really in doubt, in part because Congress has declined to pass any laws on the topic, leaving the FCC and telcos fight it out. With the court's decision likely to be delayed until after the presidential and congressional elections, that situation looks likely to continue. ®

https://www.theregister.com//2024/08/02/fcc_net_neutrality/