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 prevented internet service providers from prioritizing some apps or websites over others. It's the conclusion of a decades-long fight for a more equitable Internet — and other consumer protections may await in the years to come.
It's easy to get lost in the technical details net neutralityBut the basic thing the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination, slowing speeds for some customers or some 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 effect in the near term; We're largely back to the status quo, and Spectrum is unlikely to immediately try to slow down YouTube to let you watch its own cable news channels. But that's why the way the Sixth Circuit reached its decision may be even more worrying than the decision itself.
The three-judge panel was repeatedly cited Loper Bright Enterprises v. RaimondoA recent Supreme Court decision that overturned a legal principle called Chevron deference. under beamWhen it came to deciding how relevant laws should be interpreted when their provisions were ambiguous, the courts had to defer to regulatory agencies. Now, the courts are free to decide for themselves. And the Sixth Circuit did just that.
The decision states, “Unlike previous challenges that the D.C. Circuit considered under Chevron, we cannot now deference to the FCC's reading of the statute.” “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 subject matter expertise 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. Are.” “Referring to the court Loper Bright “This is a worrying sign of industry-friendly decisions to come.”
And not just on issues affecting the broadband industry. The Sixth Circuit today showed how courts can use the end of Chevron deference to shape all kinds of policy, from technology to the environment to health care and almost any area where legislative ambiguity reigns.
Chevron's critics argued that Congress often delegates the task of interpreting policies to unelected bureaucrats working for federal agencies, says John Bergmeyer, legal director of the consumer advocacy nonprofit Public Knowledge. “Now we have a choice: The first panel of judges to hear an issue can set nationwide policy.”
Bergmeier says there is at least one way out of this imbalance of power: Congress could pass a bill that explicitly says agencies have the authority to interpret laws. That seems unlikely, however, in a GOP-led legislature that is wary of the administrative state — or outright hostile to it.