Without some sort of future Congressional action, the Federal Communications Commission’s on-again, off-again approach to enforcing net neutrality rules on broadband providers would seem to be permanently off. That’s after a ruling from the Sixth Circuit last week.

With no need to give deference to the FCC’s reading of the underlying statute after the U.S. Supreme Court’s Loper Bright decision, the Sixth Circuit found that broadband providers offer an “information service” under the applicable statute. That reading means the FCC lacks the statutory authority to impose net-neutrality policies through the “telecommunications service” provision of the Communications Act which gives the agency more extensive regulatory authority over common carriers.

Jeffrey Wall and Morgan Ratner of Sullivan & Cromwell, who represented NCTA—The Internet & Television Association, USTelecom—The Broadband Association and the Ohio Telecom Association, took the lead for petitioners challenging the Biden administration’s key tech policy. Wall argued the matter at the Sixth Circuit in October.