In the end, the return of 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 is the conclusion of a decades-long fight for a more equitable Internet and a harbinger of what may await other consumer protections in the years to come.
It’s easy to get lost in the technicalities of net neutrality, but the basic thing the Federal Communications Commission wanted was the power to prevent broadband providers from discriminating against bandwidth, reducing speeds for certain customers or certain sites. Those protections existed under the Obama administration, but were repealed shortly after Donald Trump took office in 2017. You probably won’t feel much of an impact in the short term; We’re largely back to the status quo, and it’s unlikely that Spectrum will immediately try to slow down YouTube so you can watch its own cable news channels. But that’s also why the way the Sixth Circuit reached its decision may be even more alarming than the ruling itself.
The three-judge panel frequently cited Loper Bright Enterprises v. Raimondothe recent Supreme Court decision that struck down a legal doctrine known as Chevron deference. Low ChevronCourts should defer to regulatory agencies to decide how relevant laws should be interpreted when their provisions are unclear. Now the courts are free to decide for themselves. And the Sixth Circuit did exactly that.
“Unlike previous challenges the D.C. Circuit considered under Chevron, we no longer offer deference to the FCC’s reading of the statute,” the ruling says. “Instead, our task is to determine ‘the best reading of the statute’ in the first instance.”
In other words, the court substituted its own expertise for the FCC’s expertise in the matter.
“It’s a sad day for democracy when giant corporations can look to forums for industry-friendly judges to overturn some of the most popular consumer protection rules in history,” says Evan Greer, director of the nonprofit digital rights organization Fight for the Future. “The court citing bright parrot “There is an alarming harbinger here of industry-friendly rulings to come.”
And not just on issues that affect the broadband industry. The Sixth Circuit today showed how courts could use the end of Chevron deference to shape all kinds of policies, from technology to the environment to health care and virtually any area where legislative ambiguity reigns.
Chevron’s critics argued that Congress too often delegated the job of interpreting policy to unelected bureaucrats working for federal agencies, says John Bergmayer, legal director of the nonprofit consumer advocacy organization Public Knowledge. “Now we have the alternative: the first panel of judges to hear a matter can set a national policy.”
There is at least one way out of this power imbalance, Bergmayer says: Congress can pass a bill that explicitly says that agencies have the authority to interpret laws. However, that seems unlikely in a GOP-led legislature distrustful (or openly hostile) to the administrative state.