Recent Supreme Court rulings have thrown most U.S. regulatory enforcement into operational and legal chaos. The dismantling of Chevron, with the Loper Bright ruling in particular, now dictates that regulators can’t implement new rules or reforms without the explicit approval of Congress.
Two problems: one, regulators ideally have very specific subject expertise Congress doesn’t have (think about Ted Cruz trying to craft new rules managing wireless spectrum). Two, Congress has been lobbied into corrupt dysfunction, ensuring these theoretical, better, clearer laws and reforms never actually arrive.
Corporations (and the various policy tendrils employed to parrot them) have dressed Chevron up as some noble rebalancing of institutional power. In reality they’ve just taken a hatchet to what’s left of U.S. corporate oversight. Corporate lawyers know they’ve effectively lobotomized Congress. Now they want to dismantle what’s left of federal regulatory oversight. When that’s done, they’ll take aim at state power.
It gets dressed up as some sort of sophisticated ethos, but the goal for corporations has always been the absolute unchecked accumulation of unlimited wealth, free of any government intervention, regardless of the market, labor, or human cost. A lot of ink gets spilled pretending otherwise.
It’s with that backdrop that ISPs and the FCC have started squaring off in court in the latest skirmish over net neutrality. You’ll recall the Republican-stocked 6th circuit put the FCC’s restored net neutrality rules on ice last August. Last week, ISPs and the FCC started having their arguments probed by a three court panel comprised of one Trump appointee and two George W Bush appointees.
Historically, precedent has suggested that the FCC has the authority to classify/reclassify ISPs as common carriers or enact/repeal net neutrality provided they do so within the confines of the Telecom Act and use basic, supporting data. As the EFF notes, Post Loper Bright, that’s all out the window, and the goal for industry is to be able to abuse their regional telecom monopoly power without government opposition:
“These companies would love to use their oligopoly power to charge users and websites additional fees for “premium” internet access, which they can create by artificially throttling some connections and prioritizing others.”
As usual, the telecom industry is claiming that the FCC is abusing its authority to restore net neutrality. You’re to ignore that the telecom industry routinely argues that absolutely any effort by the FCC to do absolutely anything is an abuse of power. If the Sixth Court doesn’t accept the industry’s argument, it heads to the Trump-stocked Supreme Court, where they’ll likely get a sympathetic ear.
All the coverage and analysis I see focuses a bit too myopically on net neutrality. To be clear the FCC isn’t just fighting for net neutrality, it’s fighting for the right to be able to engage in consumer protection at all under current law, whether that’s the policing of unfair usage caps, trying to end racial discrimination in broadband deployment, or trying to stop your cable company from ripping you off with shoddy fees.
Post Loper Bright, telecoms are going to argue that any consumer protection effort by the FCC is an abuse of power well outside of any interpretation of the Telecom Act, and with a court system stocked with Trumpists with an active disdain for precedent, they’re likely to win their arguments more often than not. That’s going to create legal chaos, chill federal willingness to protect users, and punt most broadband consumer protection to an inconsistent platter of state consumer protection efforts.
So far the courts have repeatedly ruled that if the federal government abdicates its responsibility to protect broadband consumers, states have the legal authority to fill the void on net neutrality (or anything else). But we’ll see how long those efforts hold up once an industry (that spends $320,000 every day on lobbying) shifts the entirety of its attention to dismantling state authority.
The story playing out with net neutrality isn’t restrained to telecom. Some variant of this is going to be playing out across every consumer protection effort across every industry and issue that touches your lives.
Because consumer protection is generally deemed as boring, and the “regulatory state” has been demonized as useless for a generation, I still don’t think the public, press, or policy folks have fully fleshed out what our new reality means for everything from labor rights to public safety.
But it’s going to be anything but boring when the real-world impact of Trump’s Supreme Court Loper Bright ruling starts having cascading and potentially fatal impacts across the country over the next few years, at which point a lot of people are going to suddenly be wondering how exactly we let it get to this point, and why people didn’t speak up earlier in a bid to stop it.
