The Death of Net Neutrality Is a Bad Sign

In the end, net neutrality’s comeback was temporary: Today, the Seventh Circuit Court of Appeals struck down rules put in place by the Biden administration that would have prevented Internet service providers from favoring certain programs or sites over others. It’s the end of a decades-long battle against a more uniform Internet — and a sign of what may lie in store for more consumer protections in the coming years.

It’s easy to get lost in the art neutralitybut the main thing that the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination, limiting speeds to certain customers or to certain sites. That protection existed under the Obama administration but it was he rolled back shortly after Donald Trump took office in 2017. You may not hear much near-term impact; we’re back to the way it was, and Spectrum is unlikely to try to slow down YouTube right away so you can watch its videos. But that’s why how the Sixth Circuit reached its decision may be even more troubling than what it actually ruled.

Three judges are often mentioned Loper Bright Enterprises v. Raymonda recent Supreme Court decision that overturned the legal doctrine known as Chevron deference. On the floor ChevronCourts had to defer to regulatory bodies in deciding how relevant laws should be interpreted when their contributions were not clear. Now, the courts are free to decide for themselves. And the Sixth Circuit did the same.

“Unlike previous challenges considered by the D.C. Circuit under Chevron, we cannot now defer to the FCC’s rules,” the ruling said. “In fact, our job is to see ‘the best reading of the law’ to begin with.”

In other words, the court changed the FCC’s case expertise instead.

“It’s a sad day for democracy when big corporations can meet with pro-industry judges to destroy the most popular consumer protection laws in history,” said Evan Greer, director of the digital nonprofit Fight for the Future. “The court says Bright Runner here is an alarming indication of the pro-business decisions to come.”

Not just about issues affecting the broadband industry. The Sixth Circuit showed today how courts can use Chevron’s ruling to make policy on all kinds of issues, from technology to the environment to health care to any area where legal ambiguity reigns.

Opponents of Chevron have argued that Congress often delegates policy interpretation to unelected officials who work in federal agencies, said John Bergmayer, director of legal affairs at Consumer Information. “Now we have another option: The first group of judges to hear a case can set the policy for the whole country.”

There is one way to get around this power imbalance, Bergmayer says: Congress could pass a law that clearly states that agencies have the power to interpret the law. That seems unlikely, however, in a GOP-led legislature that cares about — or even hates — government.