net neutrality

Net neutrality is a highly debated concept in communications law. Legal scholar Tim Wu coined the term “network neutrality” in 2003 to describe the theory that Internet service providers (ISPs) should not discriminate in the transmission of Internet traffic. Common examples of practices implicated by net neutrality include:

  • Throttling
    • The deliberate slowing of Internet traffic to particular content, applications, or services by an ISP.
  • Blocking
    • An ISP’s denial of access to lawful content, applications, or services.
  • Paid prioritization
    • The practice of an ISP giving preferential treatment to particular Internet traffic, including arrangements in which content providers pay ISPs to prioritize their traffic. The term can also encompass preferential treatment benefiting an ISP’s affiliated content provider. 

See: Reply Comments of Netflix, Inc., In re Safeguarding and Securing the Open Internet.

The Federal Communications Commission (FCC) is the primary federal agency involved in regulating broadband Internet access. In June of 2005, one of the first U.S. Supreme Court decisions with significant implications for net neutrality was National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967. The issue in Brand X was whether the FCC could classify cable-modem service as an “information service” under Title I rather than a “telecommunications service” under Title II of the Communications Act. Unlike Title I, Title II subjects telecommunications services to common carrier regulation and gives the FCC broader regulatory authority. At the time, the Supreme Court upheld the FCC’s classification under the Chevron framework. See also: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).

Later that year, the FCC issued an Internet Policy Statement outlining four principles intended to promote an “open and interconnected” Internet. Under the principles, consumers were entitled to:

  1. Access the lawful Internet content of their choice;
  2. Run applications and services of their choice; 
  3. Connect their choice of lawful devices that did not harm the network; and 
  4. Benefit from competition among network providers, application and service providers, and content providers.

In 2010, the FCC adopted the Open Internet Order, which established rules addressing blocking and unreasonable discrimination. The rules differed between fixed and mobile broadband providers, with stronger protections applying to fixed broadband. In Verizon v. FCC, 740 F.3d 623 (2014) the U.S. Court of Appeals for the District of Columbia Circuit vacated the open internet order’s no-blocking and anti-discrimination rules. The Court held that those rules impermissibly imposed common-carrier obligations on providers that the FCC had classified as Title I information services. The Court nevertheless upheld some aspects of the FCC’s authority to promote an open Internet 

In response to the decision in Verizon, the FCC adopted the 2015 Open Internet Order. The FCC reclassified broadband Internet access service as a Title II telecommunications service and adopted three bright-line rules prohibiting blocking, throttling, and paid prioritization. The order also established a general conduct standard and enhanced transparency requirements. In United States Telecom Association v. FCC, 825 F.3d 674 (2016), the D.C. Circuit upheld the FCC’s Title II reclassification and the associated net-neutrality rules.

In 2017, the FCC adopted the Restoring Internet Freedom Order, which reversed the 2015 classification and returned broadband Internet access service to its Title I information-service classification. The order also repealed the 2015 net-neutrality rules. In Mozilla v. FCC, 940 F.3d 1 (2019) the D.C. Circuit largely upheld the FCC’s repeal and reclassification, but vacated the order’s broad preemption of state and local regulation, and remanded certain other issues.

In 2024, the FCC adopted the Safeguarding and Securing the Open Internet Order, again classifying broadband Internet access service as a Title II telecommunications service and reinstating rules prohibiting blocking, throttling, and paid prioritization. Following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) which ended Chevron deference, the Sixth Circuit reviewed the 2024 order without deferring to the FCC’s interpretation of the Communications Act. In Ohio Telecom Ass'n v. FCC (In re MCP No. 185), 124 F.4th 993 (6th Cir. 2025), the Sixth Circuit held that broadband Internet access service is an information service and that the Communications Act did not authorize the FCC to classify broadband providers as Title II telecommunications services for purposes of imposing the 2024 net-neutrality regime. The Court therefore set aside the 2024 order. The concept of net neutrality remains a contentious debate in the United States. 

For additional information, see Congressional Research Service (CRS) Report on Net Neutrality Law: An Overview, and the Justia Communications and Internet Law Center article on Net Neutrality & Legal Implications. 

[Last reviewed in August of 2026 by the Wex Definitions Team]

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