The Death of Net Neutrality Is a Bad Omen

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’s 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 engaging in bandwidth discrimination, slowing speeds for certain customers or to certain sites. Those protections existed under the Obama administration but were rolled back shortly after Donald Trump took office in 2017. You probably won’t feel much near-term impact; we’re largely back to the status quo, and Spectrum is unlikely to immediately try slowing down YouTube to get you to watch its own cable news channels. But that’s also why the way the Sixth Circuit arrived at its decision may be even more alarming than the ruling itself.

The three-judge panel frequently cited Loper Bright Enterprises v. Raimondo, the recent Supreme Court decision that overturned a legal doctrine known as Chevron deference. Under Chevron, courts were required to defer to regulatory agencies when it came to deciding how relevant laws should be interpreted when their provisions were unclear. Now, courts are free to decide for themselves. And the Sixth Circuit did exactly that.

“Unlike past challenges that the DC Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute,” the ruling reads. “Instead, our task is to determine ‘the best reading of the statute’ in the first instance.”

In other words, the court substituted the subject matter expertise of the FCC with its own.

“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. “The court citing Loper Bright here is an alarming harbinger of industry-friendly rulings to come.”

And not just on issues affecting the broadband industry. The Sixth Circuit showed today how courts might use the end of Chevron deference to shape all sorts of policy, from tech to the environment to health care to pretty much any area where legislative ambiguity reigns.

Critics of Chevron argued that Congress too often delegated the work of interpreting policies to unelected bureaucrats working for federal agencies, says John Bergmayer, legal director at the consumer advocacy nonprofit Public Knowledge. “Now we have the alternative: The first panel of judges to hear an issue can set nationwide policy.”

There’s at least one way out of this imbalance of power, Bergmayer says: Congress can pass a bill that explicitly says agencies have the authority to interpret laws. That seems unlikely, though, in a GOP-led legislature that’s wary of—or outright hostile toward—the administrative state.