Back in April the Biden FCC once again voted along party lines to restore net neutrality rules stripped away by the Trump FCC in a flurry of sleazy industry behavior that included using fake and dead people to create the illusion of public support. The Trump FCC was also caught making up a DDOS attack to explain away public outrage (net neutrality historically actually has fairly broad bipartisan support).
With the return of the rules, the telecom industry is once again taking the matter to court, filing a flurry of lawsuits in late May claiming the FCC lacks the authority not just to enforce net neutrality, but to protect broadband consumers at all. In June, the Sixth U.S. Circuit Court of Appeals won the lottery to hear the industry’s net neutrality challenge; a boon for telecoms:
“In a good sign for the broadband providers, the Sixth U.S. Circuit Court of Appeals in early June won the lottery to hear the net neutrality challenge. The Ohio-based appeals court is generally seen to lean conservative, with 10 of its 16 judges appointed by Republican presidents. But much is yet to be settled.
The judicial timeline could also be instrumental — if Trump wins in November, FCC lawyers under the next GOP chair will likely abandon defense of some of these more progressive rules in court. It’s possible the fight could one day land at the Supreme Court, where net neutrality critics like Justice Brett Kavanaugh already sit.”
Big telecom has a big advantage this time around: the Supreme Court’s recent ruling that dismantled Chevron deference, regulatory independence, and decades of well-established legal precedent. Years of court battles had pretty clearly established that the FCC has the authority to create — and repeal — net neutrality rules under the Communications Act — provided they justify it with data and logic.
But eliminating Chevron deference upends all of that, and as Colorado Professor Blake Reid notes, it’s very likely that the courts declare, after several years’ worth of billable hours for lawyers, that the FCC effectively has almost no consumer protection authority over telecom under the law:
“The easy money is that the Court’s conservative majority (including then-Judge Kavanaugh, who wrote a blistering dissent against an earlier iteration of the rules in USTA v. FCC), will simply rule that Title II of the ‘34 Act does not apply to ISPs. This result would obliterate the Damoclean pendulum of rules that has more or less kept ISPs in check over the last two decades and make it clear that America’s oft-reviled ISPs have free rein to, um, dutifully serve their customers.”
The FCC’s oversight of telecom was already fairly feckless and unevenly enforced after decades of lobbying. But should the courts head this direction, the FCC’s already shaky consumer protection authority would be effectively lobotomized without extremely explicit new laws from Congress. A Congress AT&T and friends have lobbied over decades into absolute corrupt gridlock and dysfunction.
AT&T and friends have routinely tried to argue that America wants net neutrality rules, Congress should simply pass a net neutrality law. But getting any consumer protection reforms through one of the most corrupt and broken Congressional bodies in U.S. history is a non-starter, and they know it.
Obliterating all meaningful federal oversight of telecom is a particular problem given U.S. telecom (contrary to industry claims) isn’t a functional free market; it’s a bunch of largely unaccountable regional monopolies tethered to our domestic surveillance systems. Companies that have spent the better part of the last generation crushing competitors underfoot and rendering federal oversight toothless.
In a recent filing, FCC lawyer Scott Noveck argues that Chevron wasn’t integral in the legal justifications underpinning their net neutrality rules:
“Loper Bright has no direct relevance here because the [Net Neutrality] order under review does not turn or rely on Chevron. Instead, the order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction – exactly as Loper Bright instructs.”
But if the courts ignore all logic, precedent, and consumer welfare (kind of a recurring theme lately) and rule against the FCC, nearly all of its consumer protection efforts could be in jeopardy, whether we’re talking about net neutrality, recent efforts to stop racism in broadband deployment, or even basic efforts to mandate transparency in broadband billing.
Net neutrality rules are set to go into effect on July 22, though the telecom industry filed a request on July 10 that the Sixth circuit block that from happening. That this is all happening so late in Biden’s term is thanks to the belated FCC nomination of Gigi Sohn, and the subsequent telecom-industry backed homophobic smear campaign that successfully stopped her from being seated by Congress.
One downside for big telecom: courts have repeatedly and clearly ruled that if the federal government is going to abdicate its consumer protection oversight of telecoms, states are well within their right to fill the void and pass their own net neutrality rules. Though even here, this creates a fractured landscape of inconsistent enforcement across each state border.
Now that they have Congress lobbied into corrupt gridlock, corporations are taking aim at what little regulatory independence exists within the ever-narrowing confines of law. Once they’ve successfully lobotomized regulatory independence, they’ll reallocate their resources to take aim at the last vestiges of state consumer protection authority. It’s a generational project, and it’s succeeding.
The great irony is that despite decades of infighting, shitty press coverage, and misinformation, U.S. net neutrality rules aren’t particularly onerous, won’t meaningfully impact telecom industry finances (by the industry’s own admission), and have never even been consistently enforced.
The battle has really always been about whether you want government oversight of a very broken and highly monopolized broadband industry. What it looks like if AT&T, Comcast, Verizon, Charter and friends see no coherent federal oversight whatsoever (something they’ve been gunning for for the better part of my life) is a very real possibility looming just over the horizon.
Contrary to the years of claims by telecom-industry funded think tankers and consultants, letting regional monopolies run amok isn’t going to have some near-mystical, Utopian outcome. It’s going to mean even higher prices, spottier access, slower speeds, less reliability, and all manner of new, obnoxious nickel-and-diming efforts. It will redefine market failure and regulatory capture, and it’s not going to be subtle.
