How Today’s Skeptical Supreme Court Could Block Net Neutrality Rules

President Joe Biden’s third attempt to install Gigi Sohn at the Federal Communications Commission (FCC) raises the probability that the agency will attempt to restore Obama-era net neutrality rules. But even if Sohn is confirmed and the FCC’s new Democratic majority tries to do so, the policy could meet its end in court.

Today’s Supreme Court is increasingly unwilling to defer to administrative agencies acting on the borders of their statutory authority—notably in West Virginia v. EPA (2022), a precedent that could thwart Democrats’ net neutrality aspirations. Indeed, Sohn herself conceded as much during her Senate nomination hearing last week, instead citing competing precedent from National Cable & Telecommunications Association v. Brand X (2005) to legitimize her policy goals.

Brand X‘s implications for net neutrality are nuanced. The Court found the relevant statute, the Telecommunications Act of 1996, to be ambiguous and yielded to the FCC’s assessment that internet service providers (ISPs) are not common carriers. At the time, this was a boon to opponents of net neutrality, since the FCC lacks authority to mandate net neutrality unless internet service providers are classified as such. That outcome hinged on Chevron deference, however, the judicial doctrine which holds that judges should give way to bureaucrats’ interpretation of unclear statutory language, established by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984). Under Brand X precedent, if the FCC reverses course and classifies ISPs as common carriers, which is Sohn’s goal, the Court must yield. In short, while Brand X saved ISPs from common carrier status for the moment, it fortified a legal theory that might later doom them to the same fate.

However, while the Supreme Court ought to overturn Chevron, it could nonetheless reaffirm Brand X‘s immediate conclusion—that ISPs are not common carriers under the Telecommunications Act. There are forceful arguments that the technical function