The First Three-Judge Benchmark on the Role of Net Neutrality Rules in Connected Internet Service Networks: An Empirical Warning to Congress from the Biden Administration

The three-judge panel ruled that the Federal Communications Commission (FCC) does not have the authority to impose net neutrality rules on internet service providers (ISPs). The FCC wanted to reclassify internet service providers as common carriers under the Communications Act in order to prevent them from blocking or slowing down internet traffic.

The judges were left with the liberty to wax poetic about the differences between those and more heavily regulated telecommunications services. One part of the ruling reads that the existence of a fact or thought in one’s mind isn’t information like 0s and 1s used by computers. It suggests that speaking reduces a thought to sound and that writing reduces a thought to text, but the telephone service merely transmits that which a speaker does.

Republican Commissioner Brendan Carr, Trump’s pick to lead the agency once he assumes office, issued a lengthy statement calling the ruling “a good win for the country.” The net neutrality rules were an attempt by the Biden administration to control every part of the Internet, which was a waste of time according to him. He says the work to unwind the Biden Administration’s regulatory overreach will continue, even though he is pleased with the ruling.

Critics of Chevron argued that Congress too often delegated the work of interpreting policies to unelected bureaucrats working for federal agencies, says John Bergmayer, legal director at the consumer advocacy nonprofit Public Knowledge. “Now we have the alternative: The first panel of judges to hear an issue can set nationwide policy.”

Evan Greer, director of Fight for the Future, says that it’s a sad day for democracy when giant corporations can get judges to strike down consumer protection rules. “The court citing Loper Bright here is an alarming harbinger of industry-friendly rulings to come.”

What Congress can do about the unbalanced powers of the administrative state: a Republican-dominated Legislature with a Wary Legislature?

There’s at least one way out of this imbalance of power, Bergmayer says: Congress can pass a bill that explicitly says agencies have the authority to interpret laws. That seems unlikely, though, in a GOP-led legislature that’s wary of—or outright hostile toward—the administrative state.