In a move that not only gives internet users a reprieve from the ever-tightening noose of government controls, offering us the chance to have greater freedom of choice to get faster speed for a higher price, but which also gives us the opportunity to dig deeper, into the corrupt and unconstitutional notion that the Federal Communications Commission should exist in the first place, a three-judge panel on the Sixth Circuit Court of Appeals ruled January 2 that the Biden-leaning FCC cannot impose so-called “Net Neutrality” on internet providers.
Ted Johnson writes for Deadline:
“The 6th Circuit Court of Appeals concluded that the FCC did not have the authority to implement the rules, which require that ISPs treat all traffic equally. The rules also aimed to limit ISPs from establishing ‘fast lanes’ and ‘slow lanes,’ depending on who paid for preferential treatment.”
Former FCC board member Ajit Pai offered what makes for the first of numerous key takeaways, writing on X:
“For a decade, I’ve argued that so-called ‘net neutrality’ regulations are unlawful (not to mention pointless). Today, the Sixth Circuit held exactly that.”
In fact, the panel of the Sixth Circuit ruled that the recent Supreme Court decision in this year’s Loper Bright case applied, so let’s step back and look at that and two other key facets of this story.
The term “Loper Bright” actually applies to two cases under one decision that the Supreme Court issued last year at the end of June -- a decision that overturned a long-standing, long-offensive, position called “Chevron deference” that allowed so-called “regulatory agencies” to expand their power when the legislation that created the agencies was depicted as “ambiguous.”
In the June cases, officially called “Relentless, Inc. v. Department of Commerce” and “Loper-Bright Enterprises v. Raimondo,” the plaintiffs, fishing companies in Rhode Island and New Jersey, fought expansion of the already extant, already offensive, federal mandate that the companies bring so-called “fish counters/monitors” onto their boats (something that the feds have been doing for years, sadly).
The expansion would have forced the fishermen to PAY THE SALARIES of the Sardine Stasi on their boats.
As I wrote for MRCTV upon issuance of the June ruling, the very idea that the federal government can force fishermen to accept government agents onto their boats to invade their privacy and “count” the numbers and kinds of fish they catch (and to bunk with them on working trips, and eat their food), is such a clear violation of the Fourth Amendment prohibition against unwarranted searches that it’s amazing more people don’t march in protest. But I also mentioned that demanding fishermen house the “fish counters” on their boats also breaks the spirit and meaning of the Third Amendment, which prohibits any level of government forcing private property owners to quarter “troops” in their homes.
The fish counters clearly are government agents, which, in spirit, would fall under the same prohibition that the Founders established.
And while that Loper Bright Supreme Court ruling did not fully strike down the base-level breach of rights, the majority did strike down what had held for years, the so-called “Chevron Standard” that allowed “regulatory agencies” to self-expand beyond their original “creating legislation” from Congress, so the new "pay the fish counters" demand was blocked.
This, the Sixth Circuit panel ruled January 2, applies to the FCC trying to impose so-called “Net Neutrality.”
Johnson writes that the panel:
“…noted that the net neutrality rules ‘issued during the Biden administration—undoes (sic) 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 the most recent Supreme Court decision (in ‘Loper Bright’), the judges wrote, ‘means we can end the FCC’s vacillations.’
The FCC under President Barack Obama passed the most robust set of net neutrality rules, establishing their legal footing by reclassifying internet servers as a Title II telecommunications service, or a common carrier. The latter regulatory maneuver drew widespread opposition among major telecom companies like Comcast and AT&T.
The latest appellate decision held that broadband internet service was actually an ‘information service,’ meaning that the FCC lacked authority to impose rules under Title II. The judges also ruled that mobile service could not be regulated as a common carrier.”
In other words, by changing that definition and trying to impose “Net Neutrality,” Biden’s FCC was trying to reestablish the Obama FCC’s self-expansion, something that the “Loper Bright” ruling now prohibits.
But fundamental questions remain.
First, is the term “Net Neutrality” valid, especially when invented by an FCC that claims the power over what should be a competitive market answering to consumer interests? Or, more realistically, is the term an Orwellian misdirection, a PR stunt to hide the fact that the feds are issuing arbitrary mandates and prohibitions on us, and are, in absolutely no way, “neutral”?
Second, why shouldn’t people who want faster internet service for their homes or businesses be allowed to buy faster-speed packages? Net neutrality prohibits that variety from being available. It prohibits the incentive for companies to innovate and chase those higher payoffs. That positive incentive drives the market process of discovery, research, development, and competition, which, over time, typically benefits all consumers, even the poorest buyers, as competition for the high-end clientele leads to productivity gains that lower those prices to levels that even less-flush people can afford.
Third, there is the most fundamental question, which is whether the FCC is constitutionally legitimate or morally supportable.
It is not enough to acknowledge what the Sixth Circuit panel has said, which, like “Loper Bright,” essentially is that a federal “regulatory” agency such as the FCC cannot expand its power without a new statute passed by Congress granting it that “authority.”
The very idea that the FCC should exist at all does not comport with the original intent of the Founders.
As I noted in 2017 for MRCTV:
“The FCC fungus sprouted during the Coolidge Administration in 1926 under the title ‘Federal Radio Commission’ (FRC), and its first head was the collectivist Herbert Hoover. And from its genesis to the present day, politicians have offered two ‘justifications’ for the existence of the FCC.
First, they have said that the radio spectrum is a ‘limited natural resource’, so, they've claimed, the government should be in control of it. But if one uses that kind of logic, one could argue that there are only a limited number of trees on the planet at any given time, and so politicians should regulate the content, production, and distribution of books and those archaic things called ‘newspapers’.
Would they argue for that? Fat chance.
The second argument the statists make to support the existence of the FRC/FCC is that radio waves travel over state borders, and so they can “regulate” (read, threaten with punishment if people don’t comply) communications under the Interstate Commerce Clause of the US Constitution.
But this clause, found in Article One, Section Eight, of the so-called rules they swear oaths to uphold, was intended to act as a remedial measure if States (as governmental entities, hence the capital S) were imposing tariffs on products coming from other states. It was supposed to be a way to stop state against state trade wars, not give federal politicians total power to “regulate” anything sold over state borders.”
Thus, we can see in this new Sixth Circuit ruling some positive change, but not enough to return the US stance on communications and commerce to what the Founders intended.
Only when the FCC is abolished will that facet of originalist doctrine be restored.
Right now, this new ruling places Americans in the position of being tossed in a roiling ocean, being pushed under by leftist hands, and, suddenly, having the chance to come up for air.
Until we are out of their government-created sea of controls, we cannot be free, and internet service providers will not be as eager to develop faster, better service that could be applied to multitudinous facets of our lives.
Related:
Supreme Court Rulings Curb Regulatory Agency Powers: A Win For Fishermen