Sixth Circuit Blocks Popular Net Neutrality Rules From Taking Effect

We recently noted how the telecom industry, with the help of the recent Chevron ruling, was gearing up to deliver what it hopes will be the killing blow to popular net neutrality protections. Protections designed to prevent telecom monopolies from abusing their market power to screw customers and competitors.

They appear to be having some early success. Last month, the Sixth U.S. Circuit Court of Appeals won the lottery to hear the industry’s net neutrality challenge; a boon for telecoms given the highly Republican makeup of the court (the GOP historically always sides with the policy interests of big telecom).

Last Friday the industry got another win, when the appeals court temporarily put the FCC’s reinstatement of the rules on hold until August fifth as it considers legal challenges from the broadband industry. The rules were originally slated to take effect on July 22.

The Supreme Court’s recent Chevron ruling effectively strips away decades of legal precedent and eliminates the authority of regulators (who ideally have subject matter expertise Congress doesn’t have) to make any enforcement decisions or new rules not strictly outlined by Congress.

Lobbyists have enjoyed framing this as some noble rebalancing of power for the greater good of mankind and puppies, but it’s largely a way to ensure regulators become the legal and policy equivalent of decorative gourds. A company like AT&T knows they have already lobbied Congress into abject corrupt dysfunction; now they’re setting their sights on the last vestiges of regulatory independence.

The goal for a company like AT&T and Comcast is to claim not just that the FCC lacks the authority to implement and enforce net neutrality rules, but no authority to protect broadband consumers whatsoever. “If you want consumer protections,” they’ll say, “they must be very very very clearly written by Congress” (a Congress we all well know we’ve corrupted to the point of uselessness via decades of lobbying).

Post Chevron, some variation of this will be playing out across every regulatory and industry that touches your lives, the impact and scope of which the press has woefully failed to aptly communicate to the public.

In a recent filing, FCC lawyer Scott Noveck argued that Chevron wasn’t integral in the legal justifications underpinning their net neutrality rules:

“Loper Bright has no direct relevance here because the [Net Neutrality] order under review does not turn or rely on Chevron. Instead, the order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction – exactly as Loper Bright instructs.” 

The FCC could certainly still win the fight. But this isn’t an era known for strict adherence to logic or legal precedent, so it remains very much up in the air if the FCC will come out victorious.

One very real potential outcome is that the Republican courts will declare that Title II of the ‘34 Act simply does not apply to ISPs, ensuring the FCC can’t do much of anything on consumer protection; whether it’s net neutrality or simply demanding that big telecom be transparent about sneaky fees.

The one small bright spot here: courts have repeatedly and clearly ruled that if the federal government is going to abdicate its consumer protection oversight of widely disliked telecom monopolies, states are well within their right to fill the void and pass their own net neutrality rules. Though, even here, this creates a fractured landscape of inconsistent enforcement across each state border.

Again, this microcosm impacting net neutrality is going to apply to countless other efforts to hold corporations accountable across countless different industries and regulators, clogging the courts with a parade of legal challenges that will indisputably create (quite intentionally) a gridlocked mess for regulatory enforcement. I’ve found that, generally, people don’t quite understand what’s coming.