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.
