Why Free Press Isn't Taking the Title II Fight to the Supreme Court

Back in January, the 6th Circuit Court of Appeals overturned the Biden FCC’s decision to reinstate its Title II authority over broadband and restore the Net Neutrality rules. As the Aug. 8 deadline to appeal this decision to the Supreme Court passes, we want to explain why we decided not to seek further review of this erroneous and at times absurd opinion — and discuss where we go from here. Our decision did not come lightly — nor is it a sign that we think the fight is over.

To back up, in April 2024, the FCC restored its authority to protect the open internet by reclassifying broadband services under Title II of the Communications Act, which gives the agency meaningful oversight to hold ISPs accountable for a host of consumer harms. At the same time, the FCC reinstated brightline Net Neutrality rules and open-internet protections. The broadband industry challenged this agency action in court; Free Press and several allies joined the case to defend it, filing a brief and participating in oral argument. In early 2025, a three-judge panel in the 6th Circuit sided with industry — and then rejected our request for the whole 6th Circuit bench to rehear the case en banc.

We still think the 6th Circuit got the issues dead wrong, as we detail below. But the realities of this Supreme Court, this administration and the myriad threats to democracy, freedom of speech and human rights cumulatively make this a bad time to bring further challenge before the highest court. In this post, we discuss the reasons why we decided to discontinue our case, why we still think the lower-court opinion is misguided and our next steps.

Why we won’t seek Supreme Court review

If you’ve been following the Supreme Court, it should be no surprise that the merits of any given case may not necessarily dictate its outcome. Put differently, the makeup of this court was simply not favorable to a good outcome at either the certiorari stage (when the Court decides whether to take on the case) or the merits stage. Could we have won? Of course. Were we more likely to win than lose? That’s a very different question.

While we believe that the issue of proper oversight of broadband is not partisan — nor should judges and justices be — it would be naive to pretend that this case could not fall victim to the political ideology of a divided court and become bad law on the books. If there’s any doubt of that possibility, just take a look at the recent string of bad decisions falling on 6–3 lines (consider some of these examples here, here, here, here, and here).

The odds of obtaining a favorable decision were made even slimmer by the fact that Justice Brett Kavanaugh already made his position clear on the matter in U.S. Telecom Association v. FCC. In a previous round (and mirror image) of this battle, industry challenged the FCC’s 2015 Open Internet Order classifying broadband as a “telecommunications service” under Title II. The D.C. Circuit deferred to and upheld the Obama FCC’s order, and then denied industry’s request to rehear the petition en banc.

That opinion was the opposite outcome from 2025, obtained from judges in 2015 with a more sophisticated understanding of the technology and legal questions in play — but also a more deferential standard of review for federal agencies in place (before the Supreme Court’s decision to change those standards too).

When Kavanaugh was still a judge on the D.C. Circuit, he dissented from its decision not to rehear the case. His dissent also revealed that he’d essentially made up his mind anyway — arguing that the major-questions doctrine applied, that reclassification was a major question, that Congress did not authorize the FCC to issue such a rule, and (for good measure) that the Net Neutrality rule violates the First Amendment. We don’t agree with any of Kavanaugh’s statements there, but he’s now a justice and a key vote. 

By contrast to 2015, the 6th Circuit opinion this year ruled purely on the grounds of statutory interpretation, finding that broadband internet-access service is best read under the Communications Act as a Title I “information service.” The 6th Circuit did not base its ruling on either of the justifications then-Judge Kavanaugh raised. That is a good thing — a glimpse of restraint in an otherwise terrible decision.

As we explained to the 6th Circuit in our brief, resorting to the major-questions doctrine should be extremely rare. Buying industry’s position on the major-questions doctrine would have grossly expanded that rule in a way that could have weakened federal-agency authority more broadly. By keeping this case from the Supreme Court, we keep Justice Kavanaugh from a second bite at that bad apple, as well as any other justices in favor of expanding major-questions doctrine in administrative-law cases more broadly.

Further complicating matters is the fact that the election gave the Trump administration a majority at the FCC, an agency Brendan Carr now leads. A longtime Title II and Net Neutrality foe, Carr was actively and prematurely chomping at the bit to roll back the Biden FCC’s open-internet rules.

In July — and before our window to appeal had even lapsed — the FCC removed the Net Neutrality rules from its books without any advance notice or opportunity for public comment. That was a useless gesture at the time. The 6th Circuit had already rendered those rules inoperative, as Carr’s press release at the time noted. Yet he couldn’t wait to delete the supposed “burden” of rules with no legal effect — all so that he could pat himself on the back and throw industry a bone.

The odds were just not in our favor, and after deliberation, we decided that pursuing further appeal could create an even worse outcome for the public interest and good governance.

Problems with the 6th Circuit opinion

Our decision does not take away from how painfully mistaken the 6th Circuit opinion was. As we stated after its release, the court’s decision got it wrong on every level of analysis — from the granular textual analysis, to the broader statutory context and the legislative and administrative-agency history, all the way to the overarching policy concerns that motivated Congress to write the law in the first place.

Let’s start with the text of the statute. The 6th Circuit based its reasoning on the fact that the statutory definition of a Title I information service captures “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” The court observed that ISPs do connect consumers to edge providers like Netflix and Google, but suggested that because this offering also provides users with a “capability” to retrieve that third-party content, it falls under the definition of an information service.

If that reasoning sounds confusing, it’s not a fault in your comprehension skills. The court’s decision is nonsensical. It blows up the already intricate definitions in the law, making them a meaningless, circular morass. If read as expansively as Judge Griffin asserts in authoring the opinion, virtually all communications services — including the epitomic use case, telephony — would fall under the “information services” definition.

For example, you could say that someone on the phone with a friend is “retrieving” information from the other person when having a conversation. To make his analysis work, Judge Griffin makes a baffling philosophical distinction between information conveyed by binary code (information conveyed online) and “innate knowledge” over airwaves (like voices conveyed over the phone). To this court, “[t]he 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.”

But even if this were a principled way to distinguish the two activities (it isn’t), it also ignores the fact that telephone conversations … are also conveyed over binary code today, while much “information” transmitted over the internet is nothing more than live human voices. (Maybe Judge Griffin isn’t a big podcast fan.) Plus, this frankly bizarre musing finds no textual support in the statute at all. Courts have to interpret terms in the law to make decisions, but inventing entirely new definitions, subcategories and fanciful distinctions like this is pretty remarkable.

Zooming out one level, the order also grabs at a separate part of the law — Section 230 — to argue that this statute supports the finding that broadband is an information service. But this blatantly ignores Congress’ explicit instructions that Section 230’s definitions are cabined to that section alone — plus, Section 230’s generally deregulatory utterances are policy proclamations, not mandates applicable to the FCC.

Moving to the broader history, the decision cherry-picks which parts it cites. The court recounts a version of the FCC’s actions from 1980 and onward, but ignores key points. Looking back to stray pronouncements in FCC orders from a quarter-century ago or more, the 6th Circuit’s decision ignores the fact that the “internet access services” subject to those early interpretations were nothing like the broadband connections of today. Things like AOL and cable companies’ similar “walled-garden” services gave customers not only access to the World Wide Web, but a bundle of email and chatboards and other proprietary services from the ISP itself.

Treating a modern broadband provider solely as an “information service” provider, as judges on the D.C. Circuit recognized in 2015 and even more explicitly just a few years later, “is unhinged from the realities of modern broadband service.” But even in 2005, Justice Scalia recognized that internet-access service clearly transmits data of the customer’s choosing, and simply offers people access to information “qua” information in the 6th Circuit’s scrambled view. Judge Griffin’s flight of fancy doesn’t match up with the technological reality or the law, as jurists from different eras and very different schools of thought recognized.

In fact, before this year’s novel decision, courts had never agreed with various Republican-controlled FCC administrations that broadband is an information service. They had merely acceded to the FCC’s malleable interpretations, on the grounds of the Chevron deference doctrine the Roberts Court discarded in 2024. 

 At the highest level, the 6th Circuit either misunderstands or ignores the policy considerations at play when Congress wrote the law at issue in this case. The order frames the Telecommunications Act as deregulatory in nature, and with this framing presents “heavy-handed” Title II oversight as inconsonant with that intent. But this misinterprets how Congress chose to achieve that goal when it wrote into that law an ability for the Commission to forbear from applying certain statutes and regulations. In other words, Congress gave the FCC the power to change its own regulations over time, precisely so the agency could apply the appropriate amount of oversight to providers, pulling back where needed.

Yet the Telecommunications Act of 1996 did not, and could not, command the FCC to change the definitions in the law merely to achieve any policy objective. As Free Press has noted in the past, there’s no need to “deregulate by definition,” and the results obtained on that route are the kind of contorted nonsense we see in the 6th Circuit’s decision.

And in the FCC’s 2024 order restoring Title II classification, the agency did indeed forbear from applying certain regulations to broadband providers. We can (and did) argue with providers’ exaggerated claims about the burdens various rules supposedly impose on them. But the FCC has tremendous ability to fine-tune its rules under Title II; it does not need to abdicate authority over broadband or pretend the service is the same as a search engine to regulate appropriately. This background, which the late Justice Scalia recognized, is missing in the 6th Circuit opinion.

Why we still need to keep fighting

Just, reliable and affordable internet access — and the FCC’s power to ensure it — is needed now more than ever. Americans increasingly rely on the internet to work, go to school and participate in society. For example, Free Press conducted research showing that over 50 percent of people in the United States use social media to access news. Yet while the internet’s key role in our households has solidified, safeguards to ensure that everyone can access it have not. The Affordable Connectivity Program, which provided discounts on internet service to low-income people, was discontinued in 2024. There’s neither adequate federal funding for broadband affordability nor adequate federal safeguards ensuring nondiscriminatory broadband deployment and service to the communities that need it most. 

While the 6th Circuit might label any basic oversight over ISPs as “heavy-handed,” this take has aged like milk as Brendan Carr has consistently shown his predilection for regulatory overreach since stepping into the role of chairman. While the court and Carr may consider consumer protections an overstep, Carr has wasted no time going beyond his authority to intimidate companies and news outlets that have earned Trump’s ire, and has waded into issues where the agency doesn’t actually have authority, like exploring the elimination of the broadcast national-ownership cap.

It’s consistent with the ideology of some elected officials and judges to suggest that any rules protecting people against exploitative and extractive practices must be heavy-handed burdens on business. But that ignores whether there’s a net benefit to consumers and competition from the safeguards, let alone any proof of just how burdensome these rules supposedly are in the first place for companies that routinely crow about how profitable they remain.

Next steps in the fight to protect consumers and the open internet

 The end of this case is not the end of this battle. The classification back and forth across administrations and court cases — on the basis of definitions written nearly three decades ago now — has not been good for anyone. Even though we needed to fight that fight, and even though our reading of the law was best, it’s not the only way to move ahead.

States are stepping up to ensure that their constituents can receive a fast, affordable and open internet — and have successfully defended those wins in court. This patchwork approach is not a sufficient permanent stand-in for a uniform federal law enshrining these protections, but it’s a promising route to keep moving in that direction.

We are well past due for modernized and crystal-clear federal protection for an open and affordable internet, and Free Press will continue to fight toward that goal until it is enshrined in law. That is what the Communications Act was designed to do, and Free Press will see to it that it does again.

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