The Sixth Circuit’s Decision to Revisit the Federal Communications Commission’s Protections for a Safe, Equality Internet for All

The rule that would have prevented internet service providers from favoring certain websites over others was struck down today by the Sixth Circuit Court of Appeals. 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.

This left the judges free to wax philosophical about phrases like “offering of a capability” and “information services,” finely parsing the distinction between those and more heavily regulated telecommunications services. “The existence of a fact or a thought in one’s mind is not ‘information’ like 0s and 1s used by computers,” one part of the ruling reads. It asserts that “speaking reduces a thought to sound, and writing reduces a thought to text … during a phone call, one creates audio information by speaking, which the telephone service transmits to an interlocutor, who responds in turn,” but “crucially, the telephone service merely transmits that which a speaker creates; it does not access information.”

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. We are mostly back to the status quo, and Spectrum is unlikely to immediately try and get you to watch its own cable news channels. The way in which the Sixth Circuit arrived at its decision may be even worse than the ruling itself.

The USTelecom called the struck rules a victory for American consumers that will lead to more investment, innovation, and competition in the digital marketplace.

The FCC wanted to make ISPs accountable for outages, have a more robust network, protect fast speeds and give consumers better protections for their data.

The repeal of net neutrality was achieved by the Trump Administration in 2 years after it was repealed by the FCC.

Democrats are on the side of net neutrality in order to hold ISPs more accountable for providing fast, safe and reliable internet for all. The decision dealt a blow to the Biden Administration, which prioritized net neutrality rules.

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. The courts were supposed to defer to the regulatory agencies when deciding if relevant laws should be interpreted. The courts are free to make their own decisions. And the Sixth Circuit did exactly that.

Evan is the director of the digital rights nonprofit Fight for the Future and he says that it’s a sad day in democracy when giant corporations can forum shop for industry friendly judges to strike down consumer protection rules. This is a sign of industry-friendly rulings to come.

How is Congress afraid of the administrative state? A new analysis of Bergmayer’s frustration with the bureaucracy in the GOP-dominated legislature

There’s at least one way out of this imbalance of power, Bergmayer says: Congress can pass a bill that explicitly says agencies have the authority to interpret laws. That seems unlikely, though, in a GOP-led legislature that’s wary of—or outright hostile toward—the administrative state.