Chevron deference and net neutrality

TL;DR SCOTUS striking down Chevron deference made it possible for the 6th circuit to undo net neutrality rules. I think it was a valid judicial decision and it won't make much of a difference in terms of how you use the Internet.

There have been some fights about net neutrality on the Federal level since the late 2000s or so. The way it started off, broadband ISPs were classified as "information service" providers under the Telecommunications Act of 1996. Then in 2015 the Obama administration's FCC put in place a change that reclassified broadband ISPs as "telecommunications services." The reclassification came with a slew of restrictions and regulations, including the "net neutrality" rule, because ISPs became "common carriers". The Trump administration undid the Obama administration's change and put ISPs back on their original "information service" classification. Now, the most recent case from the 6th circuit revolves around the Biden administration trying to re-instate the Obama-era change. The 6th circuit ruled that the Biden administration cannot do that.

The reason that this fight has been going on for so long is in part due to Chevron deference. Chevron deference is/was the legal framework that told courts that they must defer interpretations of a law to the executive agency responsible for enforcing that law so long as the agency's interpretation of the law is "reasonable." Chevron deference is the reason the Obama administration was able to justify changing 20-ish years of precedent, and it is the reason the Trump administration was able to undo the rule. It was, until this year, probably going to be a big part of the Biden administration's push to reinstate the Obama rule. All of the interpretations of the law were "reasonable" so the courts (had to) let them fly.

Chevron deference got struck down this year. It is no longer true that courts *must* defer to executive agencies, and they are now able to make their own decisions about what the law means and whether or not an executive agency is following the law correctly. That is what the 6th circuit did in this case, it made its own decision about what the Telecommunications Act means and how much authority it gives the FCC. Ultimately they decided that the FCC's reclassification of broadband ISPs as "telecommunications services" overstepped its executive authority and the original "information service" classification should stand.

It is also a little bit interesting to note that the court's opinion makes several observations about the oscillating approach to the net neutrality rule, and they looked at the whole debacle with some amount of disdain.

So eliminating Chevron deference screwed us on net neutrality?

In the sense that we don't have net neutrality I guess you could say yes, but as a more general statement I would say no. An executive agency being able to re-interpret a law as they see fit basically eliminates the whole reason for having legislative and judicial bodies in the first place. An agency that can "reinterpret" a law to drastically change what powers they have is an agency that effectively writes the law. This is extremely dangerous when that agency is also responsible for enforcing the law (read: they can crack heads if you don't do what they say.) I don't think that ends justify means, so I am still of the opinion that striking Chevron deference was a good thing even though it may cause some headache in this particular case.

Is this decision good or bad for the Internet?

I don't think it matters much, at least not yet, because I don't foresee ISPs immediately doing crazy stuff just because this ruling came through. There is also a way to reverse this: Congress may legislate it. The court made its ruling based on law, and laws have have to be passed by Congress. If the law changes (instead of an executive agency's interpretation) then the court's objection to net neutrality goes away. That threat will be present *forever* and is somewhat of a deterrent to exploitative behavior by ISPs.

On a more general note is hard for me to say if striking net neutrality is good or bad. Net neutrality is definitely a sweeping regulation which affects a big swath of the information ecosystem. When you begin messing with something as big as the Internet you *will* run into unintended consequences. There are doomsday-style scenarios that I have heard people talk about (e.g. ISPs could force you to pay more to access your cousin's tiny website because he's not Netflix!) but I don't recall seeing anything like that happen in practice either before or after net neutrality was enacted by the Obama administration. It is possible that I did not see those scenarios because I was not looking (if you know of an example, please let me know, ingrix@sdf.org), but it's also possible they did not happen because they're contrived scenarios that don't actually make sense for ISPs to do in practice. Also, please note that the official federal rule instating net neutrality was only in place for 3 years from 2015-2018. ISPs have had plenty of time to make those doomsday scenarios come true if they wanted to.

Another thing to note: ISPs obviously have an interest in not being regulated under net neutrality, but there is also clearly a financial interest from the big tech companies that advocate *for* net neutrality. They don't do their advocacy out of the goodness of their hearts, they do it because it will allow them to earn more money. What implications that has for you (and other, smaller, players/competitors in their own ecosystem) is a different and equally important question.

There are two reasons for everything.  There's the good reason, and there's the real reason.