Why Ajit Pai’s “unhinged” net neutrality repeal was upheld by judges

The Federal Communications Commission has mostly defeated net neutrality supporters in court even though judges expressed skepticism about FCC Chairman Ajit Pai's justification for repealing net neutrality rules.

One of the three judges who decided the case wrote that the FCC's justification for reclassifying broadband "is unhinged from the realities of modern broadband service." But all three judges who ruled on the case agreed that they had to leave the net neutrality repeal in place based on US law and a Supreme Court precedent. Today, consumers use broadband almost exclusively to access third-party content. "In a nutshell, a speedy pathway to content is what consumers value. It is what broadband providers advertise and compete over," Circuit Judge Patricia Millett wrote. While auxiliary services like DNS and caching are still part of the broadband bundle, "their salience has waned significantly since Brand X was decided" in part because DNS is readily available for free from other sources, and "caching has been fundamentally stymied by the explosion of Internet encryption," Judge Millett wrote. "For these accessories [DNS and caching] to singlehandedly drive the Commission's classification decision is to confuse the leash for the dog," she wrote. In 2019, she continued, "hanging the legal status of Internet broadband services on DNS and caching blinks technological reality." 

Circuit Judge Robert Wilkins agreed with Millett's assessment. "As Judge Millett's concurring opinion persuasively explains, we are bound by the Supreme Court's decision in [Brand X], even though critical aspects of broadband Internet technology and marketing underpinning the Court's decision have drastically changed since 2005," he wrote. "But revisiting Brand X is a task for the [Supreme] Court—in its wisdom—not us."