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The Death Of Net Neutrality Is A Bad Omen

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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 a rule 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 battle for a fairer internet—and a harbinger of what lies ahead for more consumer protections in the coming years. The Commission wants the power to prevent broadband providers from doing bandwidth discrimination, speed limits for certain customers or certain sites. These protections were in place under the Obama administration but were reinstated shortly after Donald Trump took office in 2017. You probably won’t feel the short-term impact; we’re basically back to the status quo, and Spectrum can’t immediately try to slow down YouTube so you can watch your own cable news channel. But it’s also why the way the Sixth Circuit arrived at its decision may be more alarming than the decision itself. The three-judge panel frequently cited Loper Bright Enterprises v. Under Chevron, courts are required to defer to the regulatory agency in deciding how the relevant statute should be interpreted when the provision is ambiguous. Now, the courts are free to decide for themselves. And the Sixth Circuit did exactly that. “However, our job is to determine the ‘best reading of the statute’ at the outset.” In other words, the court substituted the FCC’s own subject matter expertise. “It’s a sad day for democracy when giant corporations can forum-shop for industry-friendly judges to strike down some of the most popular consumer protection laws in history,” said Evan Greer, director of digital rights nonprofit Fight for the Future. “The court citing Loper Bright here is a harbinger of industry-friendly decisions to come.” And it’s not just about issues affecting the broadband industry. The Sixth Circuit showed today how courts can use the end of Chevron deference to shape all kinds of policies, from technology to the environment to health to pretty much any area where legislative ambiguity reigns. of policy interpretation for unelected bureaucrats used for Federal agencies, said John Bergmayer, legal director at the non-profit consumer advocacy Public Knowledge. “Now we have an alternative: The first panel of judges to hear the issue can set national policy.” There is at least one way out of this power imbalance, Bergmayer said: Congress could pass a bill that explicitly says agencies have the authority to interpret the law. But that seems unlikely, in a GOP-led legislature wary of — or outright hostile to — the administrative state.

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