The Federal Communications Act & the Telecommunications Act ; “Telecommunications service” regulation (including net-neutrality restrictions) under Title II of the Communications Act; The Federal Communications Commission’s (FCC) regulation of Broadband Internet Service Providers; Deference under Chevron USA Inc v Natural Res Def Council, Inc (Chevron deference); Loper Bright Enters v Raimondo; Whether Broadband Internet Service Providers provide a “telecommunication service”; 47 USC § 153(51) or an “information service” (§ 153(24)); The Safeguarding Order’s provisions concerning “mobile broadband”; § 332(d)(1)

In these multi-circuit Petitions for Review of the FCC’s Safeguarding and Securing the Open Internet Order (FCC 24-52), the court granted the petitions for review and set aside the Order. It held that because Broadband Internet Service Providers offer only “information services,” the FCC lacks the statutory authority to impose its “net-neutrality policies” through the telecommunications service provision of the Communications Act. Further, the Act does not permit the FCC to classify mobile broadband as a “commercial mobile service” and then impose “net-neutrality restrictions” on those services. The court considered the Communications Act and various administrations’ attempts at Internet regulation/deregulation. It noted that the D.C. Circuit had “applied the now-overruled Chevron doctrine” in upholding “wholly inconsistent regulations as ‘permissible’ under the Act.” Under the Safeguarding and Securing the Open Internet Order at issue here, “Broadband Internet Service Providers are again deemed to offer a ‘telecommunications service’ under Title II and therefore must abide by net-neutrality principles.” Pursuant to Loper Bright, rather than afford deference to the FCC’s reading of the statute, the court was tasked with determining “‘the best reading of the statute’ in the first instance.” It concluded that the “Order misreads the text of the Communications Act as it applies to Broadband Internet Service Providers and mobile broadband services.” The question was whether, in providing the public Internet access, Broadband Internet Service Providers “are merely a conduit for data transmission . . . and thus offer consumers a telecommunications service (as the Safeguarding Order concludes); or whether, instead, [they] offer consumers the capability to acquire, store, and utilize data—and thus offer consumers an information service.” In the court’s “view, the latter is the best reading of the Act.” It found that it made “sense to exclusively classify integrated services, including those offered by Broadband Internet Service Providers, as information services because the definition expressly contemplates telecommunications usage, tying the ‘offering of a capability’ to utilize (for example) information ‘via telecommunications.’” The court determined that the “key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more.” The court also held that “mobile broadband does not qualify as ‘commercial mobile service’ under § 332(d)(1) and therefore may not be regulated as a common carrier.”