This week, the Sixth Circuit Court of Appeals will hear arguments that could determine the future of net neutrality in the U.S. The central question is whether the FCC has authority to prevent broadband providers from selectively slowing or blocking internet traffic. The legal debate revolves around the “major questions doctrine,” which limits agency action on significant issues without explicit Congressional backing. As detailed by the Bloomberg Law report, the case outcome could significantly impact the open internet and how Americans access online content.

With FCC rules in limbo, the doctrine gains importance as an avenue for internet service providers (ISPs) like Comcast and AT&T to challenge regulatory power. Telecom companies contend that the FCC, under its current mandate, cannot categorize broadband as a "telecommunications service," a label that would empower it to enforce net neutrality. Advocates for net neutrality, however, argue this classification is essential to prevent ISPs from implementing “fast lanes” for certain traffic at additional costs. Kit Walsh of the Electronic Frontier Foundation highlights that the FCC’s rules protect an open internet where “data... travels fairly, without improper discrimination.”

Beyond the Sixth Circuit, the stakes may escalate further. The Supreme Court's recent decision in Loper Bright Enterprises v. Raimondo reduces judicial deference to agency interpretations, adding a layer of complexity. In the Loper Bright decision, the Court signaled that courts should independently interpret statutes rather than relying on agency discretion. This approach may affect the FCC’s longstanding authority if the Supreme Court, with Justices like Brett Kavanaugh, who has previously expressed skepticism over FCC regulatory powers, ultimately takes the case.

Over the years, net neutrality has become a recurring issue in U.S. policy, with rules shifting based on the administration in power. While broadband providers argue that additional regulation will hinder investment and innovation, states like California and Oregon have independently implemented net neutrality protections in response to federal deregulation. If the Sixth Circuit sides with the telecom industry, many anticipate a shift toward uneven service tiers without broad federal protections, although some experts believe states’ measures could mitigate national policy changes.

Barbara Cherry, Professor Emeritus at Indiana University, noted the unpredictability surrounding the major questions doctrine, which, she says, has become a “wild card” in agency regulation debates. Observers like Blair Levin of the Brookings Institution expect that regardless of the decision, it will add to the long-standing “battle fatigue” surrounding net neutrality, keeping the issue on hold as the case likely advances to the Supreme Court.