‘I Think It’s Over’: Sixth Circuit Kills Biden Attempt to Control Internet

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Really? We thought Net Neutrality was “over” in 2017. Joe Biden’s attempt to revive it came to a crashing end just days before his presidency will do the same, however. 

In a unanimous ruling yesterday, the Sixth Circuit Court of Appeals struck down Biden’s attempt to give government control of the Internet via the FCC. The court’s ruling includes mobile broadband as well as terrestrial Internet services, which means the court rejected jurisdiction even for the communications that take place across the public spectrum. And as at least one Net Neutrality advocate conceded, it’s pretty much toast at this point:

Democrats at the Federal Communications Commission had considered the reinstatement of net neutrality a major accomplishment under the Biden administration. The reversal is a glimpse of the years ahead, during which President-elect Donald Trump’s team has vowed to broadly undo his predecessor’s regulation of private-sector companies.

The net neutrality issue revolves around how heavily federal regulators should control the companies that build and operate the internet. Democrats favor heavier oversight along the lines of how traditional telephone networks are regulated, while Republicans have argued for a lighter touch. Net neutrality was adopted by the FCC under the Obama administration, reversed under Trump, then reinstated under President Joe Biden.

“I think that net neutrality is going to have a long respite,” said Marc Martin, a partner at Perkins Coie and a former FCC official, adding that he sees the prospect of the Supreme Court overruling the 6th Circuit as slim. “It would have to take future bad acts that get a lot of attention to maybe bring a different Congress to act and give the FCC authority. Short of that, I think it’s over.”

That serves as a tacit admission that Congress never granted the FCC jurisdiction over the Internet in the first place. That reveals the Biden effort — as well as Barack Obama’s before it — to be an unconstitutional power grab for the executive branch, the kind of basic overreach that violates the separation of powers and abuses agency law. Both administrations knew that they could not get Congress to grant regulatory authority over the Internet to the executive branch, and therefore just tried to grant it to themselves.

We also know what the Biden administration likely planned to do with it. We have written plenty about the censorship syndicate involving the Biden State Department and Big Tech over what they call “disinformation,” and Net Neutrality would have opened the door even wider to the suppression of dissent and debate by inserting the FCC as a regulator on content and access. The Free Press’ Nellie Bowles offers an amusing but very pointed take on the demise of the Big Brother Censorship Industrial Complex in her TGIF column today:

→ Censorship department closes before the bad guys come: The State Department’s Global Engagement Center (GEC) closed last week and the department’s 120 staffers are no doubt busy wiping all the computers before anyone can see more of what they were up to. The GEC was one of the primary censorship offices within the federal government, funneling taxpayer money to stamp out dissident journalism and bad takes. For example, the GEC marked down as suspect anyone who questioned Covid’s origins in the wet market, and the GEC funded a network of censors who did important work like labeling the New York Post as “disinformation.” As Matt Taibbi put it in some of his great reporting on the disinfo industry: “. . . it funded a secret list of subcontractors and helped pioneer an insidious—and idiotic—new form of blacklisting.”

In the disinformation movement dream, the labels were the first step, then under a second Biden term, all disinformation would inevitably be banned. Rightly so! Legacy reporters were all in on the idea of Biden appointing a “reality czar” (whose main responsibility would have been reminding Biden of the reality that he was indeed alive and the president). Reality Czar was a real proposal, god bless them, and groups like GEC were essential to this. Now, they are stymied. Reality is without a czar, and Global Engagement sans a Center. Now, everyone is talking. It’s horrible. It is anti–Global Engagement. It is not approved by the Reality Community. The people cannot handle this freedom. Freedom means teen boys shaving their chests to look like Andrew Tate. Freedom is showing up to a school board meeting and going off. Appalling. I’m pro–reality czar. I just want it to be my reality czar, not yours.

Now imagine what the Biden administration — or any administration — would have done with the power they attempted to usurp on Internet traffic. The authority would nominally have only addressed general traffic handling, but the ability to penalize these carriers and platforms would have given the FCC and other executive agencies plenty of leverage to dictate policies on content as well. 

Censorship and control of debate and dissent aren’t the concerns for the court in this challenge, however. The FCC’s attempt to shoehorn those functions through its enabling statute is, and thanks to Loper Bright and the end of the Chevron doctrine, the court can tell the FCC to stuff it. And so they did:

Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a “telecommunications service” under Title II and therefore must abide by net-neutrality principles. 89 Fed. Reg. 45404 (May 22, 2024) (to be codified at 47 C.F.R. pts. 8, 20) [hereinafter Safeguarding Order]. 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. Id.

Using “the traditional tools of statutory construction,” id., we hold that Broadband Internet Service Providers offer only an “information service” under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the “telecommunications service” provision of the Communications Act, id. § 153(51). Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a “commercial mobile service” under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC’s Safeguarding Order.

This is precisely the kind of bureaucrat-checking outcome that the Supreme Court envisioned when it overturned Chevron in Loper Bright. The federal bureaucracy has spent decades engaging in empire-building without any input from Congress, and sometimes even at the encouragement of legislators who prefer to have their unpopular agendas imposed rather than voted into statute. That very much includes the progressive dream of government control of the Internet, both in terms of access and content, the latter of which the GEC attempted to create through a back door of policing “disinformation.” 

So yes, Martin is almost certainly correct that the Supreme Court would laugh this challenge out of their docket if the FCC attempted to appeal this decision. But that won’t happen anyway, not with the new Donald Trump administration replacing the Big Brother Biden bureaucrats in less than three weeks. It’s over. Go home.