The Conservative Judiciary Is Beginning To Break Stuff

First up: the internet!

The United States Court of Appeals for the Sixth Circuit just gleefully reversed the Federal Communication Commission’s net neutrality policies for the entire nation. As a direct consequence of the Supreme Court blowing up Chevron deference last term, three judges with jurisdiction over just four states (Kentucky, Michigan, Ohio, and Tennessee) have now ordered President Biden and every future president to cease regulating the internet in perpetuity.

Judge Richard Griffen (a George W. Bush appointee), writing for himself and Judges Raymond Kethledge (GWB) and John Bush (Trump), justified the intervention as bringing much-needed stability to executive branch regulations:

[The current] order—issued during the Biden administration—undoes the order issued during the first Trump administration, which undid the order issued during the Obama administration, which undid orders issued during the Bush and Clinton administrations. Applying Loper Bright means we can end the FCC’s vacillations.

Describing government policy-making as “vacillations” illustrates the judiciary’s plan to arrogate policymaking power to itself now that conservatives control it. The days of judicial restraint are over, and we’re going to see judges slash through federal regulation at will for decades to come. This is just the beginning.

Net Neutrality

Broadly speaking, “net neutrality” is the principle that broadband internet service providers (ISPs) should not discriminate against or in favor of certain content. Of course, ISPs can and do already discriminate against users by requiring that their customers pay more for faster download times. But under net neutrality, ISPs cannot discriminate against websites that generate content, known as “edge providers.”

Without net neutrality, an ISP could allow its users to stream video from Netflix at one rate while throttling down download speeds when viewing content from Amazon Prime or YouTube. And the same is true of essentially every website any user visits on the Internet.

Support for net neutrality breaks down largely along partisan lines, with Democrats in favor of a regime that provides for equality of access, and Republicans decrying it as a distortion of the marketplace. This caused the “vacillations” the Sixth Circuit declared a problem and deputized itself to solve: Obama’s Federal Communications Commission (FCC) implemented net neutrality rules in 2010 and 2015; Trump repealed them in 2018; and President Biden campaigned on a promise to reinstate net neutrality, which he did.

On May 22, 2024, the FCC issued a 153-page final rule entitled “Safeguarding and Securing the Open Internet; Restoring Internet Freedom.” Broadband internet carriers would be prohibited from “blocking, throttling, or engaging in paid or affiliated prioritization arrangements” and subject to “a general conduct standard that prohibits unreasonable interference or unreasonable disadvantage to consumers or edge providers.”

Critically, these changes at the FCC aren’t “vacillations,” but rather the government responding to the will of the people in voting for a president to enact their policy priorities. Of course we would expect the Biden FCC to have different policies from the Trump FCC — that’s one of the reasons to vote for Biden over Trump. We used to call that democracy.

The Legal Issue: “Information” Versus “Telecommunication” Services

The Federal Communications Commission derives its authority from the The Communications Act of 1934. Under that Act, Congress decreed that certain private companies acted as “common carriers,” meaning that they served the public and therefore were held to heightened duties to consumers, including that their fees must be “fair and reasonable” (47 U.S.C. 201) and that they may not

make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

[47 U.S.C § 202]

Phone companies are common carriers subject to that nondiscrimination duty. The issue for the Sixth Circuit was whether broadband internet service providers were “common carriers,” subject to this regulation, or information providers, who are outside it.

The problem is that the Act defines “common carrier” as “any person engaged as a common carrier,” which is somewhat less than helpful. In the lengthy definitions section of that law, 47 U.S.C § 153 defines fifty-nine different things ranging from “analog television service” to “wire communication.”

However, two definitions in particular are important for the net neutrality dispute. Subsection 24 defines an information service as:

The offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

Meanwhile, subsection 53 defines a telecommunications service as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”

Quick! Before you know which definition applies to the policy you prefer, ask yourself: Is a broadband internet service provider an “information” service or a “telecommunications” one?

Here’s why it matters. Under the Act, companies that provide telecommunication services “shall be treated as a common carrier” to the extent that they provide such services. In other words, if ISPs are a telecommunications service, then they are common carriers; but if they’re an “information” service, then they’re not.

Or perhaps the answer to that question is ambiguous. After all, the Act does not say “internet service providers are common carriers.” If that was Congress’s intent — and if Congress was still in the business of passing laws — it could amend the statute tomorrow to say so.

But in the absence of a clear statement by Congress, the DC Circuit Court of Appeals deferred to the FCC’s interpretation of the Act, as the agency charged with implementing it. The judges did not consider themselves policymakers; instead they deferred to any reasonable agency interpretation of the law, consistent with the Supreme Court’s holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

So when the Obama administration said that ISPs were common carriers, the DC Circuit said that was fine. And when the Trump administration said they weren’t, that was also fine. It wasn’t court’s job to solve for “vacillation,” because it’s not a policy-making body. Consistent with that rather quaint notion that elections have consequences, the D.C. Circuit upheld both views as reasonable, relying upon the now-defunct doctrine of Chevron deference, which required a court to defer to an agency’s interpretation of the scope of a statute in the event of ambiguity.

But in June of 2024, the nation’s conservatives finally achieved their goal of overturning Chevron deference in Loper Bright Enterprises v. Raimondo, allowing any federal court, anywhere, to evaluate executive branch interpretations of statute as a matter of first impression (“de novo”). Writing for the Court’s six conservatives, Chief Justice Roberts glibly insisted that there is one and only one “best reading” of any statute, and “agencies have no special competence in resolving statutory ambiguities.” And so now judges are empowered to take big red Sharpie to any and every action taken by a federal agency, with zero regard for the agency’s own historical determinations or binding precedent from prior courts.

And that’s why Loper Bright got a big ol’ shout-out from the Sixth Circuit:

But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). Instead, our task is to determine “the best reading of the statute” in the first instance.

The idea that a law first written during the Dust Bowl has a singular “best reading” as applied to 21st century telecommunications is nonsense on its face. Even the relatively modern Telecommunications Act of 1996 is nearly three decades old and was crafted at a time when the most popular internet service providers, such as America OnLine (AOL), pulled double duty as both the product and the conduit. Nevertheless, the Sixth Circuit has determined, using “the traditional tools of statutory construction,” that ISPs “offer only an ‘information service’... and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies.”

What are those traditional tools of statutory construction? They are, in order: Merriam-Webster’s Collegiate Dictionary (10th ed., 1997), Random House Unabridged Dictionary (2d ed., 1993), and A Dictionary of Modern Legal Usage (2d ed., 1995). That’s it. I wish I were joking.

To confirm their dictionary reading, the judges point to the FCC’s Stevens Report, issued in 1998, chaired by former Alaska Sen. Ted Stevens, who was a sprightly 75 at the time. That report said that “Internet access services are appropriately classed as information, rather than telecommunications services.” Case closed!

So now, based on a handful of cherry-picked mass-market dictionaries from the last century, three federal judges have decreed that the FCC (and effectively the entire executive branch) is wrong as a matter of law that ISPs are roughly analogous to phone companies and provide telecommunications services rather than directly conveying information. Worse, the Sixth Circuit’s reading is now fixed in meaning for all time.

In its “final response” — an odd phrase in what was supposed to be a dispassionate analysis of the law — the judges “acknowledge that the workings of the Internet are complicated and dynamic, and that the FCC has significant expertise in overseeing ‘this technical and complex area.’ Yet, post-Loper Bright, that ‘capability,’ if you will, cannot be used to overwrite the plain meaning of the statute.”

What Next?

The FCC can either seek review by the full Sixth Circuit sitting en banc, or petition the Supreme Court for certiorari. Neither avenue is promising, although the 9-7 Republican/Democratic split among Sixth Circuit judges looks like somewhat better odds than the Supreme Court. And of course the Trump administration opposes net neutrality, which could moot this case starting two weeks from now.

But now, if and when we get another Democratic president, he or she will be hamstrung thanks to the Sixth Circuit. The FCC will not be able to resume the policy of net neutrality, which enjoys broad support even among Republicans. And with that certainty, the internet behemoths will likely attempt to squeeze even more revenue out of consumers, while providing us lousier service.

It’s a naked power grab by the courts, and one we’re likely to see repeated over and over now that the judiciary has been taken over by conservatives hellbent on ensuring that government does not and cannot work. But Comcast can jack its rates, so … #winning!