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.
After all, Congress also could have codified net neutrality as the law of the land rather than leaving it to the FCC. Outgoing FCC chair Jessica Rosenworcel, a Democrat, still hopes that it will. “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” Rosenworcel said in a statement. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”
That certainly would have been preferable to forcing net neutrality to ride on a political seesaw for the past two decades, passing in and out of favor depending on who’s in charge. (Former FCC chair Ajit Pai, who rolled back net neutrality rules under Trump, hailed the Sixth Circuit’s opinion as “excellent.”) But unless and until that happens, the regulatory whiplash that takes place when a new party takes power will only fuel the courts’ willingness to take matters into their own hands—especially now that they have a green light from the Supreme Court. “Applying Loper Bright means we can end the FCC’s vacillations,” the Sixth Circuit opinion says.
There’s some good news in all this. In 2018, California passed its own net neutrality law that, after years of legal challenges, fully went into effect in 2021. Because the internet doesn’t stop at state borders, California’s law does offer some degree of protection to everyone in the US. “California’s law is quite good,” says Bergmayer. “It’s just that something nationwide would be better.”
Which means, at least, that some net neutrality protections still exist. They’re not as comprehensive as digital rights advocates hoped for and not as strong as the FCC would have granted, but it’s something. But as courts increasingly invoke Loper Bright, that won’t always be the case. The Sixth Court has shown how easily consumer and environmental safeguards can now be erased in an era when it takes only one court ruling to make them disappear.
