6th Circuit Temporarily Puts Net Neutrality On Ice As The Post-Chevron GOP Assault On The Regulatory State Accelerates
We recently noted how the telecom industry,with the help of the recent Chevron ruling, was gearing up to deliver what it hoped would be the killing blow to popular net neutrality protections (read: broadly popular FCC rules designed to prevent telecom monopolies from abusing their market power to screw customers and competitors).
AT&T, Comcast, Verizon and friends certainly appear to be having some early success.
In June, the Sixth U.S. Circuit Court of Appealswon the lottery to hear the industry's net neutrality challenge; a boon for telecoms given the Republican-heavy makeup of the court (the GOP historicallyalwayssides with the policy interests of big telecom).
In mid-July, the Sixth Circuit temporarily paused restoration of the rules. Now the court has granted an extended stay, preventing the rules from being restored until the courts can hash out the legal debate between industry and government, which won't happen until at least November. There's a very real possibility that thanks to a corrupt Supreme Court, the rules won't survive legal challenge.
The court's stay makes it pretty clear they're inclined to see things the way of the telecom industry: namely that the FCC lacks the authority to impose net neutrality rules without a more specific new net neutrality law crafted by Congress. It doesn't appear to matter that previous courts confirmed the FCC has that right, or that Congress is clearly too corrupt to pass more tailored consumer protections.
Courts had previously ruled - several times now - that the Communications Act allows the FCC to impose net neutrality rules - or classify/declassify broadband providers as common carriers under Title II of the Act - provided they based their determinations on some kind of actual logic.
Post Chevron and the successful, corporate-funded attack on the major questions doctrine," that painful, multi-decade effort to establish precedent appears trashed, much to the thrill of telecom giants. Major questions doctrine declared that regulators with informed expertise had some leeway within the confines of what's often vaguely or badly-worded law. Corporations like AT&T, knowing they had Congress under their lobbying thumb, didn't much like that.
The final rule implicates a major question, and the commission has failed to satisfy the high bar for imposing such regulations," the court wrote. Net neutrality is likely a major question requiring clear congressional authorization."
There's several instances in the ruling where Chief Judge Jeffrey Sutton also seems to imply the court is viewing the entire fracas in a way that will be favorable to industry.
The consistency query makes matters worse," Sutton wrote. The Commission's intention to reverse course for yet a fourth time' suggests that its reasoning has more to do with changing presidential administrations than with arriving at the true and durable meaning of the law.'"
In short Sutton is implying that the FCC's constant ping-ponging back and forth between partisan administrations on the issue means we need a new, clearer net neutrality law. You're to ignore that Congress, which sees an estimated $320,000 in telecom industry lobbying influence every single day, is too corrupt and incompetent to ever actually do that.
Which is to say if the courts shoot down net neutrality, it's not happening. At least on the federal level. But blocking the FCC from declaring broadband ISPs as common carriers also the Telecom Act also greatly restricts its consumer protection enforcement ability more broadly, the entire reason AT&T, Comcast and friends are pursuing this avenue of attack in the first place.
States could still help fill the void on net neutrality. Precedent (for whatever that's worth anymore) has repeatedly established that if the federal government abdicates its authority over broadband consumer protections and net neutrality, states have full authority to step in and craft their own laws. For now at least; with fed authority defanged, state authority will be the next target of corporate power.
Only a few media outlets seem to understand the gravity of our new, post-Chevron reality. Regardless of precedent, impact, or logic, GOP-appointed lawyers are keen to dismantle most federal oversight of corporate power. It's the culmination of a fifty-year vision to ensure the nation's wealthiest and most powerful can pursue largely unchecked wealth accumulation with a disregard for real-world harm.
Most regulatory effort, rule, or enforcement will be challenged anew, posing grave risks to public safety, corporate accountability, functional infrastructure, and environmental reforms across every agency in America. Despite what should be obvious stakes and impact, most journalists and policy experts are treating concerns about the defanging of the regulatory state as either hyperbole or a real snoozer.
But what you're seeing play out in telecom (federal corporate oversight defanged, states rushing to fill the void) is going to play out across every industry and sector that impacts your life, flooding the court system with absolute chaos for the foreseeable future. The impact will be historically large, incredibly dire, and absolutely none of it is going to be remotely subtle.