The death of net neutrality is a bad omen

In the end, the return to 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 internet service providers from favoring certain apps or websites over others. It’s the result of a decades-long fight for a fairer internet — and a harbinger of what could lie in store for other consumer protections in the years to come.

It’s easy to get lost in the technical details Net neutralitybut the essence of what the Federal Communications Commission wanted was the power to prevent broadband providers from engaging in bandwidth discrimination and slowing speeds for certain customers or certain websites. These protections existed under the Obama administration, but were rolled back shortly after Donald Trump took office in 2017. You probably won’t feel much of an impact in the short term; We’re mostly back to the status quo, and Spectrum probably won’t 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 came to its decision may be even more alarming than the ruling itself.

The three-judge panel was frequently cited Loper Bright Enterprises v. Raimondothe recent Supreme Court decision overturning a legal doctrine known as Chevron deference. Under ChevronThe courts had to defer to the supervisory authorities when deciding how to interpret relevant laws if their provisions were unclear. The courts are now free to decide for themselves. And that’s exactly what the Sixth Circuit did.

“Unlike previous challenges the D.C. Circuit has considered under Chevron, we can no longer defer to the FCC’s interpretation of the law,” the decision states. “Instead, our job is to first determine the ‘best reading of the law’.”

In other words, the court replaced the FCC’s expertise with its own.

“It is a sad day for democracy when giant corporations can use the forum to look for industry-friendly judges to strike down some of the most popular consumer protections in history,” said Evan Greer, director of the digital rights nonprofit Fight for the Future. “The court quotes Runner bright This is an alarming harbinger of future industry-friendly decisions.”

And not just on topics that affect 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 just about any area where legislative ambiguity exists.

Critics of Chevron argued that Congress too often delegated the work of interpreting policies to unelected bureaucrats working for federal agencies, said John Bergmayer, legal director at the nonprofit consumer advocacy group Public Knowledge. “Now we have the alternative: the first jury to consider an issue can set statewide guidelines.”

There is at least one way out of this power imbalance, says Bergmayer: Congress can pass a bill that explicitly states that authorities have the power to interpret laws. But that seems unlikely in a Republican-led legislature that is suspicious or downright hostile to the administrative state.