Updated July 15, 2024.  Originally posted July 11, 2024.

On July 8, 2024, the Federal Communications Commission (FCC) and a group of Internet Service Providers, represented by national and regional trade associations, filed supplemental briefs with the U.S. Court of Appeals for the Sixth Circuit in In re MCP NO. 185. On July 15, the Sixth Circuit granted an administrative stay until August 15, 2024 “[t]o provide sufficient opportunity to consider the merits of the motion.”

The Sixth Circuit is considering challenges to the FCC’s Safeguarding and Securing the Open Internet Order (Open Internet Order), which reclassified broadband Internet access service as a telecommunications service under Title II of the Communications Act of 1934, as amended.  The Order was scheduled to take effect on July 22, 2024, but the ISP representatives asked for a stay.  The Sixth Circuit requested that the parties address the implications of the Supreme Court’s decision to overturn the Chevron Doctrine in Loper Bright Enterprises v. Raimondo for the petitioners’ motion to stay enforcement.

In its supplemental brief, the FCC argued that “Loper Bright has no direct relevance here because the [Open Internet Order] under review does not turn or rely on Chevron. Instead, the Order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction—exactly as Loper Bright instructs.”  The FCC explained that the decision in fact “reinforces the arguments set forth in our stay opposition,” because it “recognizes that a court’s legal interpretations may properly be informed by an agency’s expert assessment of predicate factual and technical issues within the agency’s specialized knowledge and expertise, as well as by roughly contemporaneous understandings of a statute by those closely familiar with it.”  The FCC also argued that “Loper Bright does not address petitioners’ failure to establish that they will suffer imminent and irreparable harm during the time it takes to decide this appeal,” which would be required for them to be granted a stay pending review.

In their supplemental brief, Ohio Cable Telecommunications Association and other petitioners argued the Sixth Circuit should stay the Open Internet Order, because they would likely succeed on the merits of their challenge in light of Loper Bright and the FCC’s inconsistent approach to Internet regulation.  First, they argued that the Net Neutrality rules “trigger[] and flunk[] the major-questions doctrine,” because “Court expressly reaffirmed [in Loper Bright] that it expects Congress to delegate authority of ‘deep “economic and political significance”’ ‘”expressly” if at all.’”  The petitioners further argued that “although the Commission has barely invoked Chevron deference,” the decision established that the Open Internet Order is not entitled to such deference.  Third, the petitioners contend that the changing views of the FCC on how to classify broadband Internet access are the opposite of “‘contemporaneous[]’ and ‘consistent’ agency interpretations” that the Supreme Court said may be entitled to greater weight.

The Sixth Circuit is expected to act on the ISP representatives’ request for a stay by July 15. 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity, Equity, & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Broadband funding under federal and state programs, including under the FCC’s Universal Service Fund (USF) and NTIA’s Broadband Equity, Access, and Deployment (BEAD) Program.
  • Representing broadcasters, media networks, and other content owners and producers on both existing and proposed FCC regulations and policies.
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ and other asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA ranks Matt within “Band 1” in his field and reports that he is a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.” It also quotes clients who praise him as “an outstanding regulatory lawyer…[who] understands the intersection between what’s important for the client’s operations and how the law impacts those operations.”

Photo of Andrew Longhi Andrew Longhi

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state…

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state, federal, and international data protection laws. He proactively counsels clients on the substantive requirements introduced by new laws and shifting enforcement priorities. In particular, Andrew routinely supports clients in their efforts to launch new products and services that implicate the laws governing the use of data, connected devices, biometrics, and telephone and email marketing.

Andrew assesses privacy and cybersecurity risk as a part of diligence in complex corporate transactions where personal data is a key asset or data processing issues are otherwise material. He also provides guidance on generative AI issues, including privacy, Section 230, age-gating, product liability, and litigation risk, and has drafted standards and guidelines for large-language machine-learning models to follow. Andrew focuses on providing risk-based guidance that can keep pace with evolving legal frameworks.