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 put in place by the Biden administration that prevented service providers from The Internet prioritizes some applications or websites over others. It’s the conclusion of a decades-long fight for a fairer Internet—and a harbinger of what might await other consumer protections in the years to come.
It’s easy to get lost in the technicalities of net neutralityBut the fundamental thing the Federal Communications Commission wants is the power to prevent broadband providers from engaging in bandwidth discrimination, slowing down speeds for certain customers or with certain websites. Those protections existed under the Obama administration but were nixed roll up shortly after Donald Trump took office in 2017. You probably won’t feel much impact in the short term; We’ve largely returned to the status quo, and Spectrum is unlikely to immediately try to slow down YouTube to help you 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 was frequently cited Loper Bright Enterprises v. RaimondoThe Supreme Court’s recent decision overturned a legal doctrine known as Chevron deference. Below ChevronCourts are required to defer to regulatory authorities when deciding how to interpret relevant laws when their provisions are unclear. Now, the court is free to decide. And the Sixth Circuit did exactly that.
“Unlike past challenges the D.C. Circuit considered under Chevron, we can no longer afford to defer to the FCC’s reading of the statute,” the ruling said. “Instead, our task is to determine at the outset the ‘best reading of the statute’.”
In other words, the court replaced the FCC’s subject matter expertise with its own.
Evan Greer, director of the digital rights nonprofit Fight for the Future, said: “It is a sad day for democracy when giant corporations can consult a forum for pro-judges. Industry advocates reject some of the most popular consumer protection rules in history.” “Court cited Bright Loper This is an alarming omen of favorable rulings for the industry to come.”
And not just about issues affecting the broadband industry. Today, the Sixth Circuit showed that courts can use Chevron’s ultimate deference to shape all kinds of policies, from technology to the environment, health care to nearly anything else. any area where legislative ambiguity reigns.
Critics of Chevron say Congress too often leaves the job of interpreting policies to unelected officials, said John Bergmayer, legal director of the consumer advocacy nonprofit Public Knowledge. work for federal agencies. “Now we have an alternative: The first panel of judges to hear an issue that could set policy nationwide.”
Bergmayer says there is at least one way out of this power imbalance: Congress could pass a bill that explicitly mandates that agencies interpret the law. That seems unlikely, however, in a Republican-led legislature that is wary of — or downright hostile to — the administrative state.
