> Although there's this nice effect where you get net neutrality for free if you can pose it as a 1A issue.

It's not as simple as that, because you would have to explain why it makes legal sense to prevent ISPs from favoring certain people over others. Under current US laws, whether the FCC has require net neutrality by ISPs depends on whether ISPs are common carriers, which depends on whether ISPs are information services or telecommunications services. Common carriers have diminished First Amendment rights of association and expression. If I were the most racist, sexist, anti-Semitic neo-Nazi in the US, a common carrier railroad would still be required to transport me as long as I buy a ticket and do no harm to the railroad company or passengers. The same goes with common carrier telephone companies. I think that it's long overdue for Congress to pass a law unequivocally treating providers of internet access as utilities, common carriers, and telecommunications services subject to regulation as such by the FCC; the justification would be that internet access in the US is increasingly essential for school, work (which is about half of people's waking lives), mass communication by individuals, and (this is the big one) interacting with all levels of governments (applying for IDs, applying for needs-based services, learning the law, tracking what representatives do, filing petitions for grievances, finding lawyers, etc.). That's the TLDR. The rest of this comment is a history lesson that isn't directed at you in particular.

The Communications Act of 1934 created and defined the term "information service" [1]. It also defined "common carrier" in the context of communications, based on the existing term "common carrier" from common law [2] and from railroad regulations [3]. Before 1996, the FCC treated broadband ISPs as information services (Title I). The Telecommunications Act of 1996 amended previous definitions and defined a new term, "telecommunications service" (Title II) [1], but the FCC continued treating ISPs as Title I information services.

> (11)Common carrier

> The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

...

> (24)Information service

> The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

> (53)Telecommunications service

> The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

In 2010 the FCC tried creating net neutrality rules, and courts said that the FCC's authority to impose net neutrality rules could not apply to Title I information services and could only apply to common carriers [4][5].

In 2015 the Tom Wheeler FCC passed the Open Internet Order [6] (with the 3 Democrats for and the 2 Republicans, including Ajit Pai, against) to reclassify ISPs as Title II telecommunications services, thereby allowing the FCC to treat ISPs as common carriers.

In 2017, the Ajit Pai FCC passed the Restoring Internet Freedom Order [7] (3 Republicans for, 2 Democrats against) to reclassify ISPs as Title I. The US internet didn't implode (in part because states that passed net neutrality laws! [8]) but it did get worse in terms of net neutrality, privacy, truth of marketing, and transparency [9]. By removing the Title II classification, the Pai FCC removed almost all of the FCC's authority to regulate ISPs at all!

In April 2024, the Jessica Rosenworcel FCC passed the Safeguarding and Securing the Open Internet Order [10] (3 Democrats for, 2 Republicans against) to reclassify ISPs as Title II. In response, ISPs sued the FCC and claimed no statute gives the FCC authority to classify ISPs as telecommunications services [11]. The 6th Circuit blocked the 2024 order from taking effect [11]:

> The 6th Circuit panel found that broadband providers "are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations."

> Net neutrality, the judges wrote, "is likely a major question requiring clear congressional authorization," and the "Communications Act likely does not plainly authorize the Commission to resolve this signal question. Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services—and never did so with respect to broadband providers specifically or the Internet more generally."

The 6th Circuit's reasoning seems completely incorrect to me considering the plain definition of telecommunications service established by the Telecommunications Act of 1996, which gave the FCC the authority to regulate the internet in the first place. But I'm not one of the wise law people, so to me the only way to end the legal debate (the descriptive legal debate, never mind the normative social debate) is for Congress to answer the question once and for all. And what I really hate is that even though a majority of Republican voters support net neutrality [12], Republican Senators oppose net neutrality regulations by the FCC and refuse to pass a federal net neutrality statute [13]. It's the perfect case study of regulatory capture.

[1] https://www.law.cornell.edu/uscode/text/47/153

[2] https://en.wikipedia.org/wiki/Common_carrier#Legal_implicati...

[3] https://en.wikipedia.org/wiki/Interstate_Commerce_Act_of_188...

[4] https://en.wikipedia.org/wiki/Comcast_Corp._v._FCC

[5] https://en.wikipedia.org/wiki/Verizon_Communications_Inc._v....

[6] https://www.fcc.gov/document/fcc-releases-open-internet-orde...

[7] https://www.fcc.gov/document/fcc-releases-restoring-internet...

[8] https://en.wikipedia.org/wiki/Net_neutrality_in_the_United_S...

[9] https://www.theverge.com/2019/7/9/20687903/net-neutrality-wa...

[10] https://www.fcc.gov/document/fcc-restores-net-neutrality-0

[11] https://arstechnica.com/tech-policy/2024/08/fcc-suffers-majo...

[12] https://blog.mozilla.org/en/mozilla/internet-policy/new-mozi...

[13] https://en.wikipedia.org/wiki/Net_neutrality_in_the_United_S...