The Corrupt Supreme Court Makes A Reckless Mess Of Broadband Consumer Protection (And Everything Else)


from the look-kids,-we’re-dismantling-the-federal-government dept

The Supreme Court issued a recent ruling that could take an absolute wrecking ball to everything from consumer protection and environmental reform to public safety. It was a ruling that dismantled decades of precedent and puts nearly all regulatory enforcement efforts at risk, yet it somehow barely warranted much coverage by a largely disinterested, billionaire-owned U.S. press.

It’s being sold as some sort of noble, good faith rebalancing of power by industry, but the Loper Bright v. Raimondo ruling eliminates Chevron deference and upends the major questions doctrine, which, in many instances, risks turning U.S. regulators into the legal and policy equivalent of decorative gourds.

Chevron deference delegated independent regulators (often with detailed subject matter expertise Congress doesn’t have) the authority to craft policy (and sometimes new rules) provided they were within the reasonable confines of the law. The Loper ruling strips that authority away, leaving many policy determinations in the hands of an increasingly corrupt, and increasingly extremist, court.

From Feckless Mush To Something Much, Much Worse

You can already routinely see how hard it is for a U.S. regulator like the FCC, whose domain is telecom and (some) media, to pass even fairly-feckless policy choices without them being sued into oblivion. Even in instances where they’re clearly acting within their Congressional mandate.

You saw it with net neutrality and consumer privacy. You see it with their fairly basic effort to rein in broadband discrimination. Even efforts to make ISPs clear about their pricing have seen bottomless legal challenge by a telecom industry incessantly trying to claim regulators have zero authority whatsoever to do anything to protect American consumers under the law.

All enforcement and reform is much, much harder now. Every policy and reform effort by regulators (even long established) will now be challenged anew, flooding the courts with numerous new contentious debates once believed somewhat settled. And it’s going to impact everything you deal with on a daily basis, from the quality of your local drinking water to your local labor protections.

In broadband land, efforts like net neutrality are at particular risk. In part because the Communications Act of 1934 was particularly murky in terms of the width and breadth of FCC authority. We’d settled much of that over the decades with various legal fights from Brand X to several rounds of net neutrality fights; fights that, more often than not, already routinely came down on the side of telecom giants.

But even the existing corrupt, feckless mess that passes for coherent consumer protection in telecom is about to be upended by a Republican minority. An unelected minority keen on dismantling the regulatory state on behalf of corporations looking to eliminate most, if not all, meaningful oversight.

University of Colorado Professor Blake Reid has an excellent post exploring how the Loper ruling could send broadband consumer protection into complete disarray with the dismantling of decades of precedent. His wager, which is likely the right one, is that the court (historically in lockstep with AT&T and Comcast) will simply declare the FCC lacks all consumer protection authority:

“The easy money is that the Court’s conservative majority (including then-Judge Kavanaugh, who wrote a blistering dissent against an earlier iteration of the rules in USTA v. FCC), will simply rule that Title II of the ‘34 Act does not apply to ISPs. This result would obliterate the Damoclean pendulum of rules that has more or less kept ISPs in check over the last two decades and make it clear that America’s oft-reviled ISPs have free rein to, um, dutifully serve their customers.”

As Blake notes there are some bright spots.

The legal debates over FCC authority are so extensive and tortured that a court looking to dismantle FCC authority has to trample many of their own past determinations to fit a square peg into a round hole, which could provide ample legal opportunities for those challenging the dismantling of the regulatory state. There’s also the fact that the courts have repeatedly declared that states have the right to protect broadband consumers (and net neutrality) if the feds won’t.

So we’re not doomed. And people should not give up hope. But in my opinion, informed by 25 years of studying and writing about U.S. consumer protection, it’s very, very, very bad.

The Supreme Court, in corrupt fealty to large corporations, simply decided it would be fun to throw several large grenades into the belly of what’s left of semi-coherent U.S. federal policy governance. But if you read the insights of folks like the American Enterprise Institute’s Daniel Lyons, they’ll try to tell you it’s all for the greater good:

“By overturning Chevron, the Court hopes to shift the locus of legislative decision making back to Congress, where it belongs. There are significant benefits to shifting important, politically sensitive issues from agencies to Congress. It increases political accountability by placing key decisions in the hands of directly elected officials. And the legislative process makes more room for bipartisan compromise, assuring more gradual but more lasting change supported by a broader swath of the political spectrum.”

This pretty common framing of the ruling teeters somewhere between delusion and lying. Corporations didn’t lobby the unelected Supreme Court because they were just super concerned about the balance of policy power among “unelected bureaucrats.” They did it because they know they’ve already lobbied Congress into absolute, corrupt dysfunction on nearly all meaningful reform and corporate oversight. Now they’re taking aim at the already shaky authority of U.S. regulators.

All during the net neutrality debate you saw some variation of the claim that “if we want net neutrality protections, Congress should just pass a law.” This was usually made by companies like AT&T who know full well they’ve ensured that Congress is a corrupt, feckless mess. Now they’ve ensured regulators often can’t implement reforms without the explicit instruction of a Congress too corrupt to function.

This is not a good faith effort at meaningful reform of policy power, and you don’t drop rulings like this the Friday before a major holiday because you’re proudly attempting to serve the public interest.

Once corporate America has the federal regulatory state handcuffed and neutered, they’ll shift their collective attention and resources toward undermining state rights. This is the culmination of a 50+ year Republican effort to dismantle coherent federal corporate oversight and accountability. All fights, on everything, are now local. And which state you currently live in matters more than ever.

The goal isn’t some noble defense of freedom or constitutional balance. The goal is legal gridlock for all meaningful reform. The goal is near-zero meaningful oversight of giant corporations. And there are decades upon decades of evidence as to precisely how that’s going to go for everybody without a seven figure lobbying budget.

And again, we’re not just talking about telecom or your expensive broadband bill. We’re talking about entirely new, bottomless legal fights over every last regulatory policy that impacts your everyday life. Every reform and every effort by every regulator governing every sector in the U.S. is going to be inundated with lawsuits by corporations claiming regulators lack the authority to do anything they view as detrimental to their goal of improved quarterly returns.

This intentional fracturing of coherent federal regulatory authority also comes as we collectively face unprecedented chaos caused by a destabilizing climate that’s only just getting started.

I’m not sure the impact and scope of this ruling is even calculable. And I don’t think the folks saying things like “this can’t possibly be that bad” or “the impact of dismantling Chevron is being overstated” fully understand precisely what we’re talking about just yet. Fortunately for them, the impacts over the next five to ten years won’t be subtle, so the learning opportunities should prove limitless.

Filed Under: chevron, chevron deference, corruption, general questions, loper, regulators, supreme court

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