When the U.S. Court of Appeals for the Sixth Circuit struck down the Federal Communications Commission’s 2024 Open Internet Order and declared that broadband access is an “information service” rather than a “telecommunications service,” it didn’t just strike down hard fought-for net neutrality rules. It stripped the FCC of most jurisdiction over broadband – leaving our communications regulator, once again, without the tools it needs to do its job. (That job, you may have forgotten, is not to deregulate at the cost of public safety, worsen the digital divide, reduce public input on rule changes, or harass broadcasters over the substance of their political reporting, but to ensure a smooth-functioning national communications infrastructure.)
Why We Decided Not To Go to the Supreme Court.
The Sixth Circuit’s ruling may be plainly wrong, but we (and our allies) have chosen not to seek Supreme Court review. The reasons are pragmatic.
Litigation is often a matter of odds, and available time and resources. Seeking review now could cement the Sixth Circuit’s radical theory – that a service that touches the internet must itself be deregulated – across the country. Or something worse. Given the Court’s recent string of opinions flipping over the table on decades of settled administrative law and constitutional law, we decided it was time to take the fight elsewhere.
And that fight is needed because broadband has already replaced telephony and cable as the “wire” that counts. The need for broadband oversight continues to grow. We need affordable, accessible, reliable broadband for all, with consumer-friendly billing and network practices, and right now, the FCC has neither the inclination nor the legal tools needed to help carry this out. Luckily, we have federalism. New York recently enacted affordability requirements for low-income households. California, Washington, Oregon, Vermont, among others, maintain statewide net neutrality laws.
But state-level action can’t fill every gap. Many essential policies, like utility pole access rules, universal-service funding, interconnection regulation, and emergency communications mandates, depend on federal authority. Already, transactions like the AT&T–Lumen merger can evade FCC review, because there’s no “regulated service” for the FCC to anchor its jurisdiction to. That’s why, even as we support state efforts, we will keep pressing at the federal level – pushing agencies to use the tools they still have, and urging Congress to make clear that broadband requires direct federal oversight.
The Sixth Circuit’s Opinion Is Comically (and in Some Ways, Dangerously) Wrong.
Now that this particular litigation is over, it’s at least easier to tell you what I Really Think™ about the Sixth Circuit’s opinion: It’s really bad. And not just because I disagree with it. There are plenty of legal opinions that I might disagree with for legal or policy reasons but I can at least grant that they are well-written, grapple honestly with arguments on the other side, and represent an effort to apply or interpret the law fairly and logically. This opinion does none of that. It was both legally flawed, and defies common sense.
Broadband consists of physical infrastructure – wires to the home, poles, transmission – and yet the court grouped it with platforms like Etsy or Reddit, not phone service. (Compare this to the opinion of the Ohio state court recently which found Google wasn’t a common carrier because it used ISPs to “carry” the information.) Broadband is similar to telephone service in the respects that justify public oversight. Both involve vast physical infrastructure networks that serve as last-mile bottlenecks, both depend on rights-of-way across public land and streets, and both function as gatekeepers to essential communication – both for users, and for the content and service providers who want to reach users. And although “common carriage” is not based on traditional market power, wired broadband today is as much a natural monopoly in many areas as telephony was in the past. Apart from changing from copper wire to fiber optics, and associated equipment, there is little that is fundamentally different between Verizon wiring up a house for gigabit fiber in 2025 and Bell Atlantic wiring up a house for telephone service in 1985.
The Sixth Circuit also adopted the absurd theory that because broadband connects users to “information services,” the broadband delivery itself becomes an “information service.” That’s like saying once a customer calls any sort of automated assistance over the phone, a telephone is no longer a communications tool, but a content provider itself – and the FCC loses authority over it. This is precisely why no court before has accepted such logic, but the Sixth Circuit waved it through by philosophically expounding:
The existence of a fact or a thought in one’s mind is not ‘information’ like 0s and 1s used by computers. The former implies knowledge qua knowledge, while the latter is knowledge reduced to a tangible medium. Consider the acts of speaking and writing. Speaking reduces a thought to sound, and writing reduces a thought to text. Both sound and text can be stored: a cassette tape for audio information, a journal for written information, or a computer for both. But during a phone call, one creates audio information by speaking, which the telephone service transmits to an interlocutor, who responds in turn. Crucially, the telephone service merely transmits that which a speaker creates; it does not access information.
Of course none of these ponderings are at all relevant. Even if you accept the questionable premise that when you talk to someone on the phone, no “information” is exchanged, people have called automated services of all kinds on their phones for years. Older folks may remember calling up movie or weather information lines. Or maybe Steve Wozniak’s dial-a-joke line. I interact with my bank all the time by navigating through menus with touch-tone beeps. In other words, the Sixth Circuit’s reasoning, if faithfully followed, would remove FCC authority over telephone services. “Fortunately” I suppose, the slapdash, hurried nature of the court’s reasoning demonstrates that this case was about killing FCC authority to protect consumers and kill the net neutrality rules, not about setting out a coherent theory of communications law.
Further, the post-Loper Bright standard requires courts to adopt the “best reading” of statutes using traditional tools of interpretation, instead of deferring to agencies under the Chevron doctrine. Before the FCC’s deregulatory push, no court independently treated broadband as an “information service.” The “information service” classification was sustained in Brand X only because the statute was found to be ambiguous, and Chevron deference allowed the agency to make a policy choice. Even then, Justice Scalia dissented in Brand X, arguing that broadband was unambiguously a telecom service. If the conservative legal movement now insists on “best readings” without Chevron, it is hard to reconcile their reverence for Scalia with their disregard for his plain-language reading of the Communications Act. How can a theory that no court reached on its own, and that was only sustained under Chevron deference, suddenly become the “best” interpretation?
What we are witnessing, unfortunately, is a judicial campaign to hollow out the concept of public obligation altogether. The Sixth Circuit’s opinion is part of a broader project: to strip agencies of their ability to regulate, to fragment the legal framework so thoroughly that every consumer protection effort faces a fresh obstacle.
Where the Fight Goes Next.
The fight, however, isn’t over. In the courts and in the states, defenders of broadband consumer protection continue to hold the line. Congress remains the best solution: updating the Communications Act to restore the FCC’s authority over broadband and codify the Open Internet rules. The technology, the law, and public sentiment align behind treating broadband as common carrier infrastructure, not as an unregulated platform. The broader goal remains to ensure an internet that’s open, affordable, and reliable. An internet that serves everyone on fair terms, regardless of geography or income. That was the original promise of common carriage in communications: that no one who needed to connect would be left out, and that the operator of the network would not exploit its position as gatekeeper to favor some speakers, content, or services over others. Broadband today is no less essential than telephone service was a century ago, and the logic that justified treating copper wires as common carriage applies with equal or greater force to fiber optics and wireless spectrum.
This cannot be the last word, nor will we allow it. States will continue to innovate, and advocates will continue to press in the courts. But in the end, only Congress must provide the clarity the law now lacks.