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 ISPs from favoring some apps or websites over others. It’s the result of a decades-long battle for a fairer 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 Net neutralityBut the main thing the FCC wanted was the ability to prevent broadband providers from engaging in bandwidth discrimination, or slowing down speeds for certain customers or certain locations. This protection existed under the Obama administration, but it was there I blinked Shortly after Donald Trump took office in 2017. You probably won’t feel much of an impact in the near term; We’re pretty much back to the status quo, and it’s unlikely that Spectrum will immediately try to slow down YouTube for its own news channels. But that’s also why the way the Sixth Circuit reached its decision may be more troubling than the ruling itself.

A three-judge panel is often cited Luber Brite Enterprises v. Raymundoa recent Supreme Court decision that invalidated a legal principle known as Chevron deference. under ChevronCourts have had to defer to regulatory bodies when it comes to deciding how to interpret relevant laws when their provisions are unclear. Now, the courts are free to decide for themselves. The Sixth Circuit did just that.

“Unlike previous challenges considered by the D.C. Circuit under Chevron, we no longer respect the FCC’s reading of the law,” the ruling said. “Instead, our job is to determine what the ‘best reading of the law’ is in the first place.”

In other words, the court substituted the FCC’s objective expertise for its own.

“It’s a sad day for democracy when giant corporations can look 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. Quoted from the court Luber Brite “This is a worrying harbinger of industry-friendly rulings to come.”

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

Chevron’s critics say Congress too often delegates the task of interpreting policies to unelected bureaucrats working at federal agencies, says John Bergmeier, legal director at the nonprofit Public Knowledge. “Now we have an alternative: the first panel of judges to hear a case can set national policy.”

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