The Death of Net Neutrality Is a Bad Omen

Ultimately, net neutrality’s return was short-lived: Today, the Sixth Circuit Court of Appeals struck down rules by the Biden administration that prevented internet service providers from favoring some apps or websites over others. It’s the culmination of a decades-long fight for a fairer internet, and a harbinger of what other consumer protections can expect in the years to come.

It’s easy to get lost in the techniques net neutralitybut the main thing the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination, throttling certain customers or certain sites. These protections were in place during the Obama administration, but that was it rolled back Shortly after Donald Trump took office in 2017. You probably won’t feel any immediate effects; we’re basically back to the status quo, and Spectrum is unlikely to immediately slow down YouTube to get you to watch their cable news channels. But because of this, the manner in which the Sixth Circuit reached its decision may be more troubling than the ruling itself.

A panel of three judges often refers Enter Loper Bright. vs. RaimondoA recent Supreme Court decision overturned the legal doctrine known as Chevron deference. Underneath Chevroncourts were required to defer to regulatory agencies when deciding how to interpret the provisions of relevant statutes when they were ambiguous. Now the courts are free to decide on their own. The Sixth Circuit did just that.

“Unlike past challenges the D.C. Circuit has reviewed under Chevron, we no longer give deference to the FCC’s reading of the statute,” the ruling said. “Instead, our task is primarily to determine the “best reading of the statute.”

In other words, the court substituted the FCC’s subject matter expertise.

“It’s a sad day for democracy when giant corporations can forum shop for industry-friendly judges to strike down some of the most popular consumer protection rules in history,” says Evan Greer, director of the digital rights nonprofit Fight for the Future. “Court citing Loper Bright is an exciting harbinger of industry-friendly decisions to come.”

And not just in matters affecting the broadband industry. The Sixth Circuit today has shown how courts can use the end of Chevron deference to shape all kinds of policy, from technology to the environment to health care to almost any area where legislative uncertainty reigns.

Chevron’s critics have argued that Congress often leaves the job of interpreting policies to unelected bureaucrats working in federal agencies, said John Bergmeier, legal director of the consumer advocacy nonprofit Public Knowledge. “Now we have an alternative: the first panel of judges to hear the issue can set a nationwide policy.”

There’s at least one way out of this power imbalance, Bergmeier says: Congress could pass a bill that makes clear that agencies have the power to interpret laws. That seems unlikely in a GOP-led legislature wary of or outright hostile to the administrative state.