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ajit pai
How Big Companies and the Courts Killed Net Neutrality
The powerful telecom industry did what they always do when the FCC does anything good or important on behalf of consumer: They sued to overturn the rules.
Jan 03, 2025
Happy New Year to everyone but the U.S. Court of Appeals for the 6th Circuit.
On Thursday, this federal court in Cincinnati threw out the Federal Communication Commission’s Net Neutrality rules, rejecting the agency’s authority to protect broadband consumers and handing phone and cable companies a major victory just weeks before the Trump administration returns to power.
The ruling against the FCC by three Republican judges isn’t shocking, but their reasoning is shoddy, a mish-mash of tired industry claims paired with a willful misrepresentation of how the internet actually works.
As Matt Wood, an experienced telecommunications attorney and my colleague at Free Press, explains: “Beyond being a disappointing outcome, the 6th Circuit’s opinion is just plainly wrong at every level of analysis. The decision missed the point on everything from its granular textual analysis and understanding of the broader statutory context, to the court’s view of the legislative and agency history, all the way to its conception of Congress’s overarching policy concerns.”
Our job now is to channel the growing outrage over this appalling decision into the long-term changes we need to keep the internet safe, reliable, accessible, affordable and free from unlawful discrimination.
Under the leadership of Chairwoman Jessica Rosenworcel, the FCC moved in April 2024 to restore Net Neutrality and the essential consumer protections that rest under Title II of the Communications Act, which had been gutted under the first Trump administration. This was an all-too-rare example in Washington of a government agency doing what it’s supposed to do: Listening to the public and taking their side against the powerful companies that for far too long have captured and called the shots in D.C.
And the phone and cable industry did what they always do when the FCC does anything good or important: They sued to overturn the rules.
This time, however, the lawyers for the biggest phone and cable companies had two things working in their favor. First, they got lucky: They won the forum-shopping lottery and got their case moved outside of Washington, D.C., where previous rounds of the Net Neutrality fight had been decided.
Second, the Supreme Court handed down a ruling in June in the Loper Bright Enterprises vs. Raimondo case that overturned the so-called Chevron doctrine that gave deference to expert agencies in complex matters like environmental and telecommunications regulations.
Unfortunately, the lawyers representing massive companies like AT&T, Comcast and Verizon found an eager audience in Cincinnati for their debunked arguments.
Despite extensive legal and economic analysis provided by Free Press and our allies in the case and at oral arguments in October, the court ruled against the FCC and deemed internet access to be an “information service” largely free from FCC oversight.
In a post-Chevron world where courts no longer have to defer to expert agencies, we’ve replaced years of evidence and argument with revelations like this from Judge Griffin: “The existence of a fact or thought in one’s mind is not ‘information’ like 0s and 1s used by computers.”
In the short term, this decision will let the incoming Trump FCC abdicate its responsibility to protect internet users so it can focus on its new priority of threatening TV broadcasters and social-media sites to carry more pro-Trump views.
I’ll spare you the rest. This court’s warped decision scraps the common-sense rules the FCC restored in April. The result is that throughout most of the country, the most essential communications service of this century will be operating without any real government oversight, with no one to step in when companies rip you off or slow down your service.
This ruling is far out of step with the views of the American public, who overwhelmingly support real Net Neutrality and despise the cable companies. They’re tired of paying too much, and they hate being spied on when they surf (or talk, thanks Siri). Now they’ll have even less recourse to deal with unscrupulous and abusive business practices.
Incoming FCC Chair Brendan Carr and his old boss Ajit Pai, who’s part of the Trump transition team, are crowing everywhere about the decision and cheering this strike against “regulatory overreach.” Of course, Carr and his ilk have never been interested in protecting the public interest, only private profits.
In the short term, this decision will let the incoming Trump FCC abdicate its responsibility to protect internet users so it can focus on its new priority of threatening TV broadcasters and social-media sites to carry more pro-Trump views. The hypocrisy of crushing light-touch regulations while aggressively pursuing government censorship is something to behold.
In the weeks ahead, the FCC, as well as Free Press and the other parties who intervened in the case, will consider our legal options and decide whether to appeal the case to the Supreme Court. In Congress, we’ll start laying the groundwork for a future bill that restores Net Neutrality and FCC authority. Meanwhile, we’ll look to the states to hold the line, with laws like California’s strong Net Neutrality regulations thankfully still on the books.
Our job now is to channel the growing outrage over this appalling decision into the long-term changes we need to keep the internet safe, reliable, accessible, affordable and free from unlawful discrimination.
It may have gotten harder, but the fight for the free and open internet is far from over.
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In Blow to Open Internet, Federal Appeals Strikes Down Biden FCC's Net Neutrality Rules
The ruling creates a "dangerous regulatory gap that leaves consumers vulnerable and gives broadband providers unchecked power over Americans’ internet access," said one advocate.
Jan 02, 2025
Citing last year's U.S. Supreme Court decision that stripped federal agencies of their regulatory powers, an all-Republican panel on the U.S. Court of Appeals for the 6th Circuit on Thursday ruled that the Federal Communications Commission lacks the authority to reinstate net neutrality rules.
The panel ruled that broadband is an "information service" instead of a "telecommunications service," which is more heavily regulated under the Communications Act, and said the FCC did not have the authority to prohibit telecommunications companies from blocking or throttling internet content and creating "fast lanes" for certain web companies that pay a fee.
Last April the FCC voted to reinstate net neutrality rules, which were first introduced under the Obama administration but were repealed by former Republican FCC Chair Ajit Pai, who was appointed by President-elect Donald Trump.
The ruling cited by the 6th Circuit panel was Loper Bright Enterprises v. Raimondo, which overturned the so-called Chevron doctrine last year. Under the decades-old legal precedent, judges have typically deferred to federal agencies' reasonable interpretation of a law if Congress has not specifically addressed an issue.
"Applying Loper Bright means we can end the FCC's vacillations" between imposing and repealing net neutrality rules, said the judges on Thursday.
The ruling serves as "a reminder that agencies are going to be neutered across any and all industries," said one observer.
John Bergmayer, legal director for the free expression and digital rights group Public Knowledge, said that by "rejecting the FCC's authority to classify broadband as a telecommunications service, the court has ignored decades of precedent and fundamentally misunderstood both the technical realities of how broadband works and Congress' clear intent in the Communications Act."
The ruling creates a "dangerous regulatory gap that leaves consumers vulnerable and gives broadband providers unchecked power over Americans’ internet access," added Bergmayer. The decision could harm the FCC's ability to protect against everything from broadband privacy violations to threats to universal service programs for low-income and rural households.
Matt Wood, vice president of policy and general counsel for another media justice group, Free Press, said the ruling was "just plainly wrong at every level of analysis."
"In April, the FCC issued an order that properly restored the agency's congressionally granted oversight authority to protect people from any [internet service provider] discrimination and manipulation. That commonsense FCC order tried to ensure that the companies providing America with the essential communications service of this century don't get to operate free from any real oversight," said Wood.
Companies and industry groups that sued over the regulations, including the Ohio Telecom Association, "baselessly claim that any regulation will hurt their bottom line," Wood added. "Treating broadband like a common-carrier service does nothing to dampen or dissuade private investment in this crucial infrastructure. And the question for any court interpreting the Communications Act must be what is in the public's best interest, not just one industry sector's financial interests."
The groups, along with FCC Chair Jessica Rosenworcel, called on Congress to take legislative action to protect internet users and small web businesses from discrimination.
"Consumers across the country have told us again and again that they want an internet that is fast, open, and fair. With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law," Rosenworcel said.
Congress must "clarify the FCC's authority—and responsibility—to protect the Open Internet and broadband users," said Bergmayer.
Bergmayer also noted that the ruling leaves states' ability to enforce their own net neutrality laws in place, and said the group "will continue to look to states and local governments to help lead on broadband policy."
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Trump's FCC Ripped Away Open-Internet Protections. We're This Close to Winning Them Back
A majority of commissioners is set to return to the agency the authority it needs to act as a strong advocate for a user-powered internet.
Apr 22, 2024
Later this week, the Federal Communications Commission is expected to reverse a Trump-era decision that stripped away essential open-internet protections. In a Thursday vote, a majority of commissioners will return to the agency the authority it needs to act as a strong advocate for a user-powered internet.
They will do this by reclassifying broadband-access services as telecom services subject to Title II of the Communications Act. Title II authority allows the FCC to safeguard Net Neutrality and hold companies like AT&T, Comcast and Verizon accountable to internet users across the United States.
Title II authority gives the FCC the tools to make the internet work better for everyone, ensuring that internet service providers can’t block, throttle, or otherwise discriminate against the content everyone accesses online. But it also gives the FCC the regulatory means to ensure that broadband prices and practices are “just and reasonable.” The agency will be able to step in to stop price gouging, safeguard user privacy, protect public safety, eliminate junk fees, and stop other abusive behavior from providers.
During a Capitol Hill press conference last week, FCC Chairwoman Jessica Rosenworcel said, “There are a lot of things in this country that divide us, but Net Neutrality is not one of them.” Rosenworcel cited poll after poll that show that people across the political spectrum overwhelmingly support the 2015 Title II Net Neutrality safeguards that the Obama FCC put in place. The same polls show majorities opposed the Trump FCC’s 2017 repeal of these protections.
“Bringing back the FCC’s authority over broadband and putting back net neutrality rules is popular, and it has been court-tested and court-approved,” she added. “[W]e have an opportunity to get this right. Because in a modern digital economy, it is time to have broadband oversight, national Net Neutrality rules, and policies that ensure the internet is fast, open, and fair.”
Back to the future
The rules up for a vote on April 25 are identical to the 2015 rules. The FCC will enforce them in the same way. And the draft order text that the agency will finalize and adopt already makes this clear — in some cases, going further than the 2015 order did — with a chance before the vote occurs for the FCC to make this language even stronger.
Losing Title II hurt people, which is why millions protested the Trump FCC’s action. Not only did its 2017 repeal gut the Net Neutrality rules, it also surrendered the agency’s power to protect communities from unjust or unreasonable practices by these internet-access goliaths.
This had troubling consequences during the early months of the Covid-19 pandemic, when Trump FCC Chairman Ajit Pai asked broadband providers to sign a
voluntary pledge to preserve people’s vital internet access (he couldn’t force providers to do this since he’d abdicated the agency’s authority to compel these companies to keep users connected). Despite Pai’s claim that the pledge was a success, reporting by Daily Dot found that many of these same companies still cut users’ connections during a national emergency, when everything from work to health care had shifted online.
A 2019 study by Northeastern University and UMass Amherst found that ISP throttling of network services happens “all the time.” Researchers analyzed data from hundreds of thousands of smartphones to determine whether wireless providers were slowing, or throttling, data speeds for specific mobile services. They found that “just about every wireless carrier is guilty of throttling video platforms and streaming services unevenly.”
In everyday terms, this means that companies like AT&T are picking winners and losers online. Allowing such throttling to continue opens the door to more content-based discrimination. This isn’t just about economic favoritism — for example, an ISP slowing down a competitor’s online app so people would use their product instead — but, potentially, the blocking of political messages that gigantic communications companies don’t like.
This isn’t a hypothetical. In 2005, the internet service provider Telus blocked access to a server that hosted a website supporting a labor strike against the company. And in 2011, the Electronic Frontier Foundation found that several ISPs were intercepting user search queries on Bing and Yahoo and directing them to “results” pages that they or their partners controlled.
The say-anything lobbyists
Lobbyists working for these large internet-access companies like to say that Title II authority offers “a solution in search of a problem” that doesn’t exist. And you can bet they’ll repeat
a lot of these lies in the aftermath of this week’s vote.
Throughout the 20 years of debate around Title II and Net Neutrality, the powerful phone and cable lobby has demonstrated a willingness to say anything and everything to avoid being held accountable. They’ll say that Title II’s open-internet standard is a heavy-handed regulation that will undermine investment in new broadband deployment; in reality, executives from these companies have said publicly that their capital expenditures
aren’t impacted in any way by Title II rules. The lobbyists will say that Net Neutrality is a hyper-partisan, politicized issue — ignoring public polling (see above) that shows internet users on the political left, right, and center overwhelmingly support the sorts of baseline protections offered under Title II.
The fight for this week’s victory predates the Trump FCC repeal of strong Title II rules in 2017. By restoring safeguards that millions fought so hard to make a reality, the FCC is recognizing the broad-based grassroots movement that coalesced in 2005 around the then-obscure principle of Net Neutrality and built a movement focused on retaining the people-powered, democratic spirit that was baked into the internet at its inception.
Without baseline open-internet protections, internet users are subject to privacy invasions, hidden junk fees, data caps, and billing rip-offs from their ISPs. In addition, without Title II oversight the FCC is severely limited in its ability to promote broadband competition and deployment, bringing this essential infrastructure within reach of people in the United States who lack access.
The FCC will change all of that later this week. It will respond to overwhelming public opinion and stand up for internet users against a handful of monopoly-minded companies that for too long have dictated media policy in Washington.
Come Thursday, I and many of the amazing advocates who’ve been fighting this fight for the past 20 years will be on hand at the FCC to witness the final vote. It will be a moment to appreciate our hard work and thank the agency for restoring to Americans their all-important online rights. Join us in celebrating!
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