Sixth Circuit Gives Insight on a Post-Chevron World: What the Set Aside of Net Neutrality Tells Us About Scope of Agency Power

By Brett W. Johnson, Ryan P. Hogan, and Vanessa M. Pomeroy

We have previously written about two consolidated cases (Loper Bright and Relentless), in which the Supreme Court reversed a decades-old rule known as the Chevron doctrine. Broadly, the Chevron doctrine required courts to defer to “permissible” agency interpretations of the statutes that those agencies administer even if a court did not agree that was the “best” reading of the statute. By ending that deference, Loper Bright and Relentless made clear that courts, not agencies, have the final say in interpreting statutes.

In the wake of Loper Bright and Relentless, it was unclear how broadly it might sweep into other areas. The Court, for its part, cryptically remarked that it did “not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful … are still subject to stare decisis,” the rule requiring courts to adhere to past precedents. Did this mean that only the exact same agency actions that have previously been upheld would be entitled to precedential effect? Or would courts continue to afford agencies broad leeway when they exercise power under statutes to which Chevron has been applied?

In the Sixth Circuit’s recent opinion in Ohio Telecom Association v. FCC, which set aside the Federal Communication Commission’s (FCC) 2024 Net Neutrality rules, the Sixth Circuit signaled that new agency actions will not be protected by precedent even if courts had upheld similar agency actions under the Chevron doctrine.

In defending the permissibility of the 2024 Net Neutrality rules, the FCC argued that the Sixth Circuit’s decision should be controlled by a 2005 United States Supreme Court case – National Cable & Telecommunications Association v. Brand X Internet Services. That case involved a challenge to an FCC determination made under the very same statute at issue in Ohio Telecom Association. Applying Chevron, the Court found the statute ambiguous and deferred to the FCC’s determination.

In a move signaling that Loper Bright will be broadly applied prospectively, the Sixth Circuit quickly brushed the FCC’s argument aside. The Court simply stated that Brand X involved a different agency action than in the case before it, so it was not the “specific agency action” at issue in Brand X and was therefore entitled to no precedential effect. Even though it was a similar exercise of authority under the exact same statute, that did not matter. This reasoning seems to prevent agencies from defending new actions in court by reference to pre-Loper Bright precedents.

In sum, to the extent there was question as to Loper Bright’s impact on future judicial decisions, Ohio Telecom Association reflects that courts are far from having their hands tied by stare decisis. This may further increase the frequency of challenges to agency actions, contributing to the already favorable judicial climate for such challenges.

Regulators and litigants should study past precedents for consistency of decision-making, as this will be a critical factor. Businesses should also stay on top of the ever-changing regulatory environment. As the new Trump administration rolls out additional regulations, there will likely be comment periods for stakeholders to voice concerns or impacts on business operations. Businesses should take advantage of this opportunity at the front end to either object or provide context to proposed regulatory changes. Reason being, all comments are added to the administrative record which can be potentially reviewed by a court in evaluating the legality of a new regulation.