Network Neutrality

One of the strange features of American government is that an 82-year-old’s broken hip can cause a sea change in telecom policy. The 82-year-old in question is Sen Patrick Leahy (D-VT), who had surgery after a fall and is said to be resting comfortably. But while Leahy recuperates, he won’t be able to cast votes and Democrats won’t be able to flex their razor-thin Senate majority — which could cost the administration its last chance to institute net neutrality rules. The temporary stalemate caused by Leahy’s recovery has lots of downstream effects.

For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case what we will spend a bunch of time arguing about how to apply to agencies generally.

The Biden Administration's loss in a Supreme Court ruling involving the Environmental Protection Agency's ability to regulate power plants could be a victory for internet service providers (ISPs)' arguments that the Federal Communications Commission was outside its regulatory lane when it reclassified internet access as a Title II common carrier service subject to open access and other requirements and imposed new neutrality rules.

A large, bipartisan majority of Americans (73%) support reinstating net neutrality, including 82% of Democrats, 65% of Republicans, and 68% of Independents. Support for net neutrality, while very high now, is a bit lower than in 2017 and 2018 when net neutrality was in place voters were asked about repealing it (83% and 86% respectively).  This drop may be due to what social scientists

Lobbying groups representing broadband internet access service providers—including ACA Connects, NCTA, CTIA and USTelecom—dropped their challenge of a federal district court's ruling upholding California's net neutrality law. The ISPs had already lost a federal district court challenge to the law and two appeals court efforts to block enforcement. The suit was dismissed without prejudice, which means ISPs could refile it if they chose.

Days after a federal appeals court decision left in place a California law that protects net neutrality in the state, more than half of registered voters said that they supported such protections, a new Morning Consult/Politico survey found. That support has remained relatively stable for several years, even after the repeal of federal rules. Among all voters, 55 percent said they supported laws that protect net neutrality, which prevents internet service providers from blocking, throttling or prioritizing certain content.

The 9th US Circuit Court of Appeals will not reconsider its decision in January to uphold California's net neutrality law. California's 2018 law barred internet service providers from blocking or throttling traffic, or offering paid fast lanes, but it only took effect in 2021.

President Biden's Supreme Court nominee Ketanji Brown Jackson hinted she may be open to a more expansive reading of antitrust laws during her confirmation hearing in front of the Senate Judiciary Committee on March 23.