Context, Courts and Commissions: The 6th Circuit Got Net Neutrality Wrong

In issuing a temporary stay of the Federal Communications Commission 2024 Net Neutrality order, the United States Court of Appeals for the Sixth Circuit has gone beyond recent teachings of the Supreme Court to erroneously block exercise of regulatory authority that Congress clearly intended the FCC to exercise. From the Federal Reserve Board to the Federal Trade Commission and beyond, expert agencies have been created as a means for Congress to ensure that durable legislative principles keep up with the times. The current Supreme Court seems not to share that view. Through its implementation of a major-questions doctrine (and its rejection of Chevron deference), it has endorsed a more skeptical view of regulatory expertise. But nothing in the current Supreme Court approach justifies the 6th Circuit’s invalidation of the Commission’s application of common-carrier classification to residential broadband services.