Few rule making processes have been as dramatic as that of net neutrality, the utility style regulation of the internet. Under net neutrality, internet service providers (ISPs) would have to treat all content the same, regardless of its relevance. ISPs have developed ways to navigate internet traffic so that users can have a seamless experience, often prioritizing some sites over others. The regulations would end this and also hand control of the internet over to the Federal Communications Commission (FCC). Net neutrality has lived many lives, repeatedly proposed, amended, and then overturned. The most recent iteration was rejected by the Sixth Circuit Court of Appeals last week, in a victory for the American people, the free market, and judicial prudence.

In 2017, the FCC’s regulations that prevented ISPs from blocking or throttling certain content or charging for higher quality service were overturned. Apocalyptic predictions followed the end of net neutrality. Advocates for FCC control of the internet were certain that, without intense regulation, the internet was sure to fall into pandemonium. Years later, America boasts a hyper efficient and resilient internet ecosystem. Despite this, net neutrality proposals were resurrected in 2023, when the FCC announced plans to restore utility style regulation through the Open Internet Order. The rulemaking process became a saga, with court stays and counter arguments from the FCC pushing the final decision far past its original April 2024 deadline.

The U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo this past summer added a new layer to the deliberations around the Open Internet Order. The Supreme Court ruled that courts were no longer required to defer to federal agencies interpretations of ambiguous Congressional legislation, a practice known as “Chevron Deference.” After Loper Bright, the Sixth Circuit was able to consider the facts of the proposed rules independent from the FCC’s interpretation of relevant statutes.

The Sixth Circuit’s decision acknowledges the impact of the end of Chevron: “…unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). Instead, our task is to determine ‘the best reading of the statute’ in the first instance.” The decision continues to cite other reasons for rejecting the Open Internet Order, including the FCC’s lack of authority to reclassify broadband internet as a “public utility,” and the obvious flourishing of the internet in the years following the repeal of net neutrality in 2017.

It is unlikely that a push for net neutrality will be restored anytime soon. The application of Loper Bright signals a new paradigm for evaluating agency dictates. Furthermore, the incoming head of the FCC, Brendan Carr, has expressed disdain for both net neutrality and regulation more broadly. In ruling against the Open Internet Order, the court affirmed the power of American innovation and the free market to create an internet far better than any regulatory body could have imagined.

Links to Learn More:

Was it the End of the Internet? – Pelican Institute

Good Riddance to Net Neutrality – WSJ

Sixth Circuit Rejects FCC’s Open Internet Order as Inconsistent with Statutory Text-Reason