Not the Same Old Broken Record?: Why Judicial Review of the 2024 Net Neutrality Rules Could Be Different
Judicial review of the Open Internet Order adopted by the Federal Communications Commission (“FCC”) in April 2024 has the chance to deviate substantially from the deferential scrutiny that resulted in upholding all three versions of the net neutrality rules adopted in prior years. With respect to administrative law, the Supreme Court’s pending reconsideration of the Chevron doctrine and its 2022 embrace of the major questions doctrine may open the door to more exacting judicial scrutiny of the FCC’s actions. In addition, Justice Kavanaugh’s elevation to the Supreme Court provides new salience to the First Amendment challenge to the 2015 version of the net neutrality rules that he endorsed in his dissent from the decision not to hear that case en banc. Lastly, the advent of 5G fixed home broadband and satellite home broadband have changed the economic and technological environment in ways that make the rationale for regulation and justifications for restricting ISPs’ editorial discretion more problematic. These key differences lead the reviewing court to take an approach that that differs widely from those in the past.