The Death of Net Neutrality Is a Bad Omen

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

It’s easy to get lost in its technicality Net neutralityBut the basic thing the Federal Communications Commission wanted was the ability to prevent broadband providers from discriminating bandwidth, slowing down certain customers or certain sites. These protections existed under the Obama administration but were Rolled back Soon after Donald Trump took office in 2017. You probably won’t feel the effects very soon; We’re largely back to the status quo, and it’s unlikely that Spectrum will immediately try to slow YouTube down to watch its own cable news channels. But that’s why the way the Sixth Circuit reached its decision may be even more troubling than the ruling itself.

Three-judge panels are often cited Loper Bright Enterprises v. RaimondoA recent Supreme Court decision struck down a legal doctrine known as Chevron deference. under ChevronCourts were required to defer to regulatory agencies in deciding how to interpret relevant statutes when their provisions were ambiguous. Now, the courts themselves are free to decide. And the Sixth Circuit did just that.

“Unlike past challenges considered under the D.C. Circuit Chevron, we no longer deference to the FCC’s reading of the statute,” the ruling said. “Rather, our task is to determine the `best reading of the statute’ in the first instance.”

In other words, the court replaced the FCC’s subject matter expertise with its own.

“It’s a sad day for democracy when giant corporations can forum-shop for industry-friendly judges to strike down one of the most popular consumer protection laws in history,” said Evan Greer, director of digital rights nonprofit Fight for the Future. “Dr. citing the court The runner is brilliant Here’s a worrying harbinger of industry-friendly rulings.”

And not just about affecting the broadband industry. The Sixth Circuit showed today how courts can use the end of Chevron deference to shape all kinds of policy, from technology to the environment to health care to any area where legal ambiguity reigns.

Chevron’s critics have argued that Congress too often does work for federal agencies by delegating policy interpretation to unelected bureaucrats, said John Bergmeier, legal director of the consumer advocacy nonprofit Public Knowledge. “Now we have an alternative: The first panel of judges to hear an issue can set nationwide policy.”

There is at least one way out of this imbalance of power, Bergmeier said: Congress could pass a bill that clearly says agencies have the authority to interpret the law. That seems unlikely, though, in a GOP-led legislature that is wary or outright hostile to the administrative state.