The death of net neutrality is a bad omen

Ultimately, the return of net neutrality was short-lived: Today, the Sixth Circuit Court of Appeals struck down rules put in place by the Biden administration that would have prevented ISPs from favoring some apps or websites over others. It’s the end of a decades-long fight for a fairer internet — and a harbinger of what may await other consumer protections in the coming years.

It’s easy to get lost in the technical aspects 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 websites. These protections existed during the Obama administration, but were rolled back shortly after Donald Trump took office in 2017. You probably won’t feel much in the short term; we’re pretty much back to the status quo, and Spectrum is unlikely to immediately try to throttle YouTube to get you to watch its own cable news channels. But it’s also why the way the Sixth Circuit reached its decision may be even more alarming than the decision itself.

The three-judge panel is often cited Loper Bright Enterprises v. Raimondothe recent Supreme Court decision that overturned a legal doctrine known as Chevron deference. Under Chevroncourts were required to refer to regulatory agencies when deciding how to interpret relevant laws when their provisions were unclear. Now the courts are free to decide for themselves. And the Sixth Circuit did just that.

“Unlike previous challenges considered by the DC Circuit under Chevron, we are no longer afforded 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 replaced the FCC’s expert with its own.

“It’s a sad day for democracy when giant corporations can forum shop for pro-industry judges to strike down some of the most popular consumer protection rules in history,” said Evan Greer, director of digital rights nonprofit Fight for the Future. “The court cites Loper Bright here is an alarming warning of pro-industry rulings to come.”

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

Critics of Chevron argued that Congress too often delegated the job of interpreting policies to unelected bureaucrats working for federal agencies, said John Bergmayer, legal director of the nonprofit consumer advocacy organization Public Knowledge. “Now we have the alternative: The first panel of judges to hear a question can determine a nationwide policy.”

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