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 some apps or websites over others. It’s the culmination of a decades-long battle for a more equal Internet—and a glimpse of what may await other consumer protections in the coming years.
It’s easy to get lost in net neutrality technology, but the basic thing the Federal Communications Commission wanted was the ability to prevent broadband providers from engaging in bandwidth discrimination, limiting speeds to certain customers or to certain sites. Those protections were in place under the Obama administration but were rolled back shortly after Donald Trump took office in 2017. You probably won’t feel the impact very closely; we’re pretty much back to the status quo, and Spectrum is unlikely to try to slow down YouTube any time soon to watch its cable news channels. But it’s also why the Sixth Circuit’s approach to its decision may be more frightening than the decision itself.
A three-judge panel is often cited Loper Bright Enterprises v. Raimondoa recent Supreme Court decision that overturned the legal doctrine known as Chevron deference. Underneath Chevroncourts had to defer to regulatory agencies when it came to determining how relevant laws should be interpreted when their provisions were unclear. Now, the courts are free to decide for themselves. And the Sixth Circuit did just that.
“Unlike previous challenges the DC Circuit considered under Chevron, we no longer allow the FCC to influence its reading of this rule,” the decision read. Instead, our job is to find the ‘best reading of the law’ at the outset.”
In other words, the court has replaced the FCC’s subject matter expertise with an adversarial one.
“It’s a sad day for democracy when big companies can buy pro-industry judges to strike down the most popular consumer protection laws in history,” said Evan Greer, director of the digital rights nonprofit Fight for the Future. “The court quotes Loper Bright here is an alarming indication of future industrial decisions.”
And not just on issues affecting the broadband industry. The Sixth Circuit showed today how courts can use the Chevron deference end to shape all kinds of policy, from technology to the environment to health care to almost any area where legal ambiguity reigns.
Chevron’s critics argue that Congress often gives the job of interpreting policies to unelected officials who work for federal agencies, said John Bergmayer, legal director at the nonprofit consumer advocacy firm. “Now we have another way: The first panel of judges to hear the case can set national policy.”
There is at least one way out of this power imbalance, Bergmayer says: Congress could pass a bill that clearly states that agencies have the authority to interpret laws. That seems unlikely, however, in a GOP-led legislature wary of—or outright loathing—the executive district.