In 2010, the F.C.C. under the Democratic chairman, Julius Genachowski, created the first proposals for net neutrality rules, stirring waves of public interest. The rules prompted street protests, torrents of email comments and even threats of violence against commissioners who opposed the rules.
The concept of net neutrality has its roots in the early days of the internet, where the ethos was one of openness and equality. The term “net neutrality” was coined by Columbia University law professor Tim Wu in a 2003 paper titled “Network Neutrality, Broadband Discrimination.” Wu articulated the principle that internet service providers should treat all data on the internet the same, regardless of source, content, or destination. This idea was born out of the concern that without such a principle, ISPs could favor certain content or services over others, potentially stifling innovation and free speech. Obama’s administration glommed onto this totalitarian solution to an ill-defined and conjectural threat as a tool to mobilize its voters and patrons.
Judge Griffin makes it clear that this time around, the FCC would not be able to rewrite federal law to suit its purposes.
That brings us to today. The Safeguarding Order once more imposes net-neutrality policies on Broadband Internet Service Providers by reclassifying broadband Internet as a telecommunications service subject to common-carrier regulation under Title II. 89 Fed. Reg. at 45404.3 This 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. Cf. Loper Bright, 144 S. Ct. at 2288 (Gorsuch, J., concurring) (lamenting that “Chevron deference engendered constant uncertainty and convulsive change even when the statute at issue itself remains unchanged”). Applying Loper Bright means we can end the FCC’s vacillations.
