Net neutrality never stood a chance

A federal appeals court sealed the fate of the Biden administration’s efforts to regulate internet providers on Thursday, striking down the Federal Communications Commission’s 2024 net neutrality order once and for all.

The order sought to reclassify internet service providers as common carriers, not unlike telephone companies, which would prohibit them from preferencing or punishing certain websites or services by, say, slowing them down or speeding them up. But since its adoption in 2015 under the Obama administration, the FCC’s net neutrality rule has been tied up in a decade-long regulatory tug-of-war, alternatively held up in court or hamstrung by administrative flip-flopping. 

The FCC repealed the rule during Donald Trump’s first term, but it was then brought back under President Joe Biden. Trump’s pick to be the next head of the FCC almost certainly would have scrapped it again. The Sixth Circuit Court of Appeals just beat him to it.

In its decision striking down the rule, the three-judge panel noted net neutrality’s long history as a political football. “This order—issued during the Biden administration—undoes the order issued during the first Trump administration, which undid the order issued during the Obama administration, which undid orders issued during the Bush and Clinton administrations,” the judges wrote. They said they believed this decision would “end the FCC’s vacillations.” 

While the Sixth Circuit’s ruling was a momentous one, given the net neutrality fight’s contentious history, it was hardly unexpected. Last summer, the Sixth Circuit blocked the rule from taking effect while the underlying case proceeded and hinted that the broadband providers who were opposing the rule were likely to succeed on the merits. “Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power,” the judges wrote at the time.  

The rule seemed doubly doomed given the outcome of a separate Supreme Court case last year called Loper Bright Enterprises v. Raimondo. In that case, the justices overturned a longstanding legal precedent in which courts deferred to federal agencies’ interpretation of ambiguous laws, thus effectively curtailing those agencies’ power. In its ruling on net neutrality, the Sixth Circuit panel leaned heavily on the Loper Bright decision, writing “[W]e no longer afford deference to the FCC’s reading of the statute.”

Free speech and digital rights advocates quickly condemned the decision. “Internet rights are civil rights,” Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, tells Fast Company in a statement.   

Evan Greer, director of the grassroots group Fight for the Future, tells Fast Company the broadband industry “forum-shop[ped] for industry-friendly judges to strike down some of the most popular consumer protection rules in history.”

But the truth is, however the court ruled, the FCC’s net neutrality protections never stood a chance of surviving the next four years. Republican FCC Commissioner Brendan Carr, who is likely to lead the agency under the second Trump term, has long opposed the rule and cast it as an example of the agency’s excesses. (This, even as Carr has called on the FCC to take aggressive action to reinterpret Section 230, the decades-old law governing tech platforms’ ability to moderate content.)

“While the work to unwind the Biden [Administration’s] regulatory overreach will continue, this is a good win,” Carr wrote on X after the net neutrality decision came out Thursday. Even if the court had upheld the protections, in just a few weeks, it would have been up to the Trump FCC to enforce them. In striking the rule, the court has only hastened the inevitable.

If there’s any silver lining for net neutrality proponents, it’s that another net neutrality law is alive and well in California, a state large enough to influence broadband providers’ behavior nationwide. Meanwhile, people like current FCC chair Jessica Rosenworcel are looking to Congress to enshrine net neutrality principles into law. “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” Rosenworcel wrote in a statement. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”

Of course, to many Republicans, who have historically loathed net neutrality proposals, that supposed mandate isn’t so clear at all. Given the fact that those same lawmakers are now about to control both chambers of Congress and the White House, it seems far more likely that any attempt to enshrine net neutrality at the federal level will be indefinitely throttled.

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