If You Love Democracy, You Should Celebrate the End of Net Neutrality

The ten-year-long saga of net neutrality may finally be put to rest. The latest ruling from the Sixth Circuit Court of Appeals rejects the Federal Communications Commission’s power grab over the internet, rendering the federal net neutrality rules void.

These rules would have allowed the FCC to regulate how internet service providers are able to allocate data speeds, requiring them to treat all internet traffic equally, regardless of purpose. While proponents argue that it safeguards an open internet, in reality it hurts smaller ISPs and stifles innovation. With the Supreme Court’s recent Loper Bright decision, there was no reason for the Sixth Circuit to hand over more authority to government regulators when the law had clear, limited definitions for telecommunications categories.

This puts the power of policy back into the hands of legislators instead of unelected bureaucrats. For some reason, many of the same people worried about the state of democracy lament this decision — but it should be the exact opposite!

The debate around net neutrality has always been fraught with panic and hyperbole. From doomsday claims that never surfaced to threats against those who opposed the policy, the conversation almost never addressed the underlying policy concern that would allow those rules to be implemented.

The first time net neutrality rules were officially adopted by the FCC in 2015 by way of the Open Internet Order, they lasted two years before new FCC leadership overturned the order. In 2024, the FCC once again sought to implement net neutrality regulations by way of the Safeguarding and Securing the Open Internet Order. In both the 2015 and 2024 orders, the FCC allowed itself to establish net neutrality rules by reclassifying the internet as a Title II utility under the Telecommunications Act of 1996, giving the FCC much wider control over internet service providers.

The act defines Title I services as those that generate, acquire, store, transform, process, retrieve, utilize, or make available information via telecommunications, whereas Title II applies to services that provide telecommunications for a fee to the public directly in a more limited way. By strict definition, the internet much more plausibly fits in the former category.

Nevertheless, proponents of net neutrality rules pushed on with regulations that would shift the internet from Title I to Title II, in spite of clear definitions from the law, and were empowered to do so via the legal doctrine of “Chevron deference.” This principle, born out of a 1984 Supreme Court case, mandated that when legal disputes brought a regulatory agency’s interpretation of the law against another party, courts were obligated to side with the agency as long as its interpretation was “reasonable.” This meant “reasonable” interpretations of the law beat out the “best” interpretations of the law! More important, however, it meant that regulatory agencies could interpret laws beyond their strict scope and become pseudo-legislators themselves, without any of the accountability that democracy provides.

Thanks to the Loper Bright decision, which removed the Chevron doctrine, judiciaries are no longer bound to defer to regulators when better interpretations of the law are an option. This is a de facto restraining of the scope of laws, returning lawmaking responsibility to legislators. This should be cause for supporters of democracy to celebrate, but instead, in a joint statement, Senators Ed Markey (D., Mass.) and Ron Wyden (D., Ore.) had this to say: “Today’s opinion also underscores the serious flaws with the Supreme Court’s decision to overturn its longstanding precedent established in Chevron v. NRDC granting deference to agencies’ interpretations of their ambiguous statutes. The Sixth Circuit opinion makes basic errors about communications technologies, neatly illustrating why expert regulators, not judges, are best positioned to make complex public policy decisions.”

It’s a rich irony that in their statement they fail to defer to any lawyers or legal experts.

In fact, the Sixth Circuit ruling was not confused, but explicitly stated that the only justification, both currently and in similar cases before, relied on Chevron deference to qualify the internet as a Title II communication. The law is clear, regardless of what regulators wish were true.

Even if net neutrality rules were a beneficial and laudable goal (spoiler alert: They are not), the proper venue for such rules should be legislation. Laws in Washington, Oregon, and California were passed to implement net neutrality rules. In a constitutional republic, this is the proper way to effect policy change. When rules circumvent the legislative process, not only do you accrue additional burdens that go beyond the original scope of the law as written, but you also create the unstable footing for the next administration to undo the work you’ve done. If net neutrality policies are as vital as proponents claim, they should do the work of winning the argument by passing the law, not sneaking around the back door.

Open debate and comparing outcomes is critical for our nation to succeed, but perhaps those who would seek to give government control of the internet are worried they can’t win the argument. Comparing the years of net neutrality rules to those without paints a dire picture for supporters, and the picture gets worse for them once you compare outcomes during the Covid years to Europe with its similar net neutrality type rules.

For now, the revocation of net neutrality rules should be cause for celebration for those who want lawmaking to stay with lawmakers, regardless of your view of the rules. Net neutrality proponents claim to want an open internet, but it seems like they may not want an open government.