Net neutrality protections again lost as federal court overrules the FCC

The right to net neutrality has again been lost after a federal court ruled that the Federal Communications Commission (FCC) did not have the power to ban a two-tier internet. The FCC had acted in response to calls from Apple and more than 40 other tech companies to safeguard equal treatment for all.

This means that internet service providers (ISPs) and mobile carriers will again be free to accept payments from large websites and services to prioritize their traffic over the rest of the internet …

Net neutrality

Net neutrality means that internet service providers had to treat all websites and Internet services equally. They couldn’t take payment from some sites, speeding up their traffic, while slowing down traffic to the rest of the web. They also couldn’t take money from one service to block traffic to a rival one.

A series of court battles saw net neutrality lost and regained more than once, with the FCC restoring it last year under the Biden administration. Its future was already uncertain, with the upcoming Trump administration vowing to repeal protections, and an appeals court case rumbling on in the background.

Net neutrality protections again lost

That court has now ruled, and it’s bad news. It decided that the FCC didn’t have the power to impose net neutrality rules.

Using “the traditional tools of statutory construction,” id., we hold that Broadband Internet Service Providers offer only an “information service” under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the “telecommunications service” provision of the Communications Act, id. § 153(51).

Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a “commercial mobile service” under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC’s Safeguarding Order.

Based on the Chevron ruling

The so-called “Chevron deference” ruling came out of a 1984 court case, in which it was ruled that if a federal agency declared that it had the right to do something, federal courts must defer to that declaration. So if the FCC says it has the right to restore net neutrality, a court couldn’t decide that it didn’t.

However, that ruling was overturned last year, giving other courts the right to overrule agencies like the FCC. The Sixth Circuit Court of Appeals has now done so, meaning that net neutrality protections no longer exist.

9to5Mac’s Take

This is bad news for both startups and consumers. It means that tech giants can pay ISPs to give them more bandwidth than their smaller competitors. That reduces competition, and leaves consumers worse off as a result.

It’s notable that many tech giants who would well afford to pay for priority treatment came out against it, and in favor of net neutrality. The list of good guys in this battle includes Apple, Amazon, Dropbox, eBay, Facebook, Google, Microsoft, Netflix, Reddit, Snap, and Spotify.

Photo by Tom Parkes on Unsplash

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