While Americans might not mourn the loss of net neutrality, an appeals court’s ruling sets a troubling precedent for consumer protections in every industry.
By Brian Barrett, Wired
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 more equitable 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 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 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 near-term impact; we’re largely back to the status quo, and Spectrum is unlikely to immediately try slowing 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 ruling itself.
The three-judge panel frequently cited Loper Bright Enterprises v. Raimondo, the recent Supreme Court decision that overturned a legal doctrine known as Chevron deference. Under Chevron, courts were required to defer to regulatory agencies when it came to deciding how relevant laws should be interpreted when their provisions were unclear. Now, courts are free to decide for themselves. And the Sixth Circuit did exactly that.
“Unlike past challenges that the DC Circuit 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 subject matter expertise of the FCC with its own.
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