The death of net neutrality is a bad omen

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 fairer Internet — and a harbinger of what can await other consumer protections in the coming years.

It is easy to get lost in the techniques of net neutralityBut the basic thing that the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination, slowing down speeds for some customers or at some sites. Those protections existed under the Obama administration, but they were returned shortly after Donald Trump took office in 2017. You probably won’t feel much of an impact anytime soon; we’re largely back to the status quo, and Spectrum is unlikely to immediately try to slow 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 decision itself.

The often mentioned three-judge court Loper Bright Enterprises v. Raymondthe recent Supreme Court decision that overturned a legal doctrine known as Chevron deference. Below Chevroncourts have been required to defer to regulatory agencies when it comes to deciding how relevant laws should be interpreted when their provisions are unclear. Now, the courts are free to decide for themselves. And the Sixth Circuit did exactly that.

“Unlike past challenges the D.C. Circuit has 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 FCC’s subject matter expertise with its own.

“It’s a sad day for democracy when giant corporations can push for industry-friendly judges to overturn some of the most popular consumer protection rules in history,” said Evan Greer, director of the association. non-profit Fight for the Future. “The court citing Runner Bright here is an alarming harbinger of favorable industry decisions to come.”

And not just about the 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 almost any area where legislative ambiguity reigns.

Chevron’s critics argue that Congress has too often delegated the job of interpreting policies to unelected bureaucrats working for federal agencies, said John Bergmayer, legal director at the nonprofit advocacy group Public Knowledge. consumers “Now we have the alternative: the first panel of judges to hear a problem can set national policy.”

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