Ultimately, net neutrality’s return 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 certain apps or websites over others. It’s the conclusion of a decades-long fight for a fairer Internet and a harbinger of what may lie in store for other consumer protections in the years to come.
It’s easy to get lost in the technical details of net neutralitybut the basic thing the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination, slowing down speeds for certain customers or to certain locations. These protections existed under the Obama administration, but they were canceled shortly after Donald Trump took office in 2017. You probably won’t feel much impact in the short term; we’re largely back to business as usual, and it’s unlikely that Spectrum will immediately try to slow down YouTube to let you watch its own cable news channels. But it’s also why the manner in which the Sixth Circuit arrived at its decision may be even more alarming than the decision itself.
The frequently cited three-judge panel Loper Bright Enterprises v. Raimondothe recent Supreme Court decision that overturned a legal doctrine known as Chevron deference. Below Chevroncourts were required to defer to regulatory agencies when deciding how relevant laws should be interpreted when their provisions were unclear. Now the courts are free to decide for themselves. And that’s exactly what the Sixth Circuit did.
“Unlike past challenges that the D.C. Circuit has considered in the Chevron context, we no longer show deference to the FCC’s reading of the statute,” the decision states. “Instead, our task is to first determine ‘the best reading of the law’.”
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 seek industry-friendly judges to overturn some of the most popular consumer protection rules in history,” says Evan Greer, director of the organization digital rights nonprofit Fight for the Future. “The court citing Loper Luminous this is an alarming warning sign of future decisions favorable to the industry.
And not just on issues affecting 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 just about every area where l legislative ambiguity.
Critics of Chevron have argued that Congress too often delegates the work of interpreting policies 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 question can set policy nationwide.”
There is at least one way out of this power imbalance, Bergmayer says: Congress can pass a bill that explicitly states that agencies have the authority to interpret laws. This seems unlikely, however, in a Republican Party-led legislature that is wary of the administrative state, if not downright hostile toward it.
