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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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The FCC as Trump's Right-Wing 'Speech Police'
Brendan Carr pretends to be a defender of free-speech rights when it suits his right-wing agenda but disappears into the ether when he should be protecting expression that doesn’t align with Trump’s authoritarian aims.
Dec 06, 2024
President-Elect Donald Trump’s pick to head the Federal Communications Commission has an on-again/off-again relationship with the First Amendment.
Brendan Carr pretends to be a defender of free-speech rights when it suits his right-wing agenda but disappears into the ether when he should be protecting expression that doesn’t align with Trump’s authoritarian aims.
His mind-bending inconsistencies on free-speech rights would sound alarms under normal circumstances, especially for someone tapped to lead the federal agency that oversees the media sector. But these aren’t normal times. And Carr’s dodgy doublespeak on government censorship seems designed to please an incoming president who’s intent on undermining the essential freedoms that flow from the First Amendment.
Carr vs. the facts
During a September hearing before the House of Representatives, Carr refused to speak out against Trump’s suggestion that ABC should lose its broadcast licenses because two of its journalists had fact checked the former president during his debate with Vice President Kamala Harris. Instead he told members of the House Commerce Committee that the law and the First Amendment guide all of his decisions — an assertion that doesn’t withstand even the slightest scrutiny.
Carr has already weaponized his future role as the government’s top media regulator by threatening to shut down the speech of anyone who questions Trump’s leadership.
In an October Fox News interview, Carr came after CBS for airing an edited interview with Harris during 60 Minutes. Editing interviews is a standard practice of television journalism, but Carr suggested that CBS violated the FCC’s seldom-invoked news-distortion policy, adding that the government could punish the network. In particular, he said that the 60 Minutes interview could factor into the agency’s review of the Skydance-Paramount merger (Paramount is CBS’ parent company).
Carr then took to Twitter to attack NBC after Kamala Harris appeared on Saturday Night Live, wrongly calling it “a clear and blatant effort to evade the equal time rule” — even though NBC did provide Trump equal time later that same weekend. Carr suggested on a subsequent Fox News appearance that the FCC should “keep every remedy on the table,” including revoking the broadcast licenses of local television stations owned by NBC and Telemundo, subsidiaries of Comcast.
“The FCC traditionally avoids regulating broadcast radio and television content except in extremely narrow circumstances, such as indecency,” Free Press Co-CEO Jessica J. González wrote in a commentary for The Hill. “ … Carr has shown that he is willing to break with [this] longstanding and bipartisan FCC precedent to punish Trump’s detractors.”
America’s top censor
In November, Carr went on the attack again. In a letter addressed to the CEOs of the world’s largest technology platforms, he argues that they are facilitating “censorship” by allowing fact checking on their sites — something they as private companies have an unambiguous First Amendment right to do. In Carr’s distorted view, however, such fact checking violated Americans’ right to be misinformed.
Carr is “rushing to be America’s top censor,” Mike Masnick, a widely read champion of the First Amendment, wrote at Techdirt. “Threatening to revoke broadcast licenses over unfavorable coverage is a blatant First Amendment violation. The government cannot use its licensing power to control or punish the speech of private actors. Carr surely knows this but doesn’t seem to care.”
It’s hard to comprehend how anyone who’s read the 45 words of the First Amendment could come away with such a blatant misunderstanding of its intent. Carr’s recent actions have made it necessary to repeat the obvious: The First Amendment protects people from government censorship; it does not protect government actors like Trump and Carr from criticism and fact checking.
Turning the FCC into the ‘roving speech police’
Carr has already weaponized his future role as the government’s top media regulator by threatening to shut down the speech of anyone who questions Trump’s leadership.
But it wasn’t long ago that Carr was preaching from a different pulpit, although with the same aim: to silence opposing views and advance his highly partisan agenda.
In March 2020 — as the global pandemic set in — Free Press called on the FCC to offer guidance on its interpretation of the agency’s “broadcast-hoax rule.” At the time a number of licensed broadcasters had aired false and misleading information about the COVID-19 crisis without providing the kinds of context or disclaimers the rule suggests.
Rather than take up Free Press’ good-faith suggestion, Carr went on the attack, making the false claim that our media-democracy organization “want[ed] to turn the FCC into a roving speech police empowered to go after the left’s political opponents” (emphasis added).
In actuality, the Free Press petition merely asks the FCC to issue guidance on the broadcasting of disinformation about COVID-19 at a time when thousands of Americans had already succumbed to the disease.
Violating his First Amendment oath
Carr auditioned for the lead part at the FCC by repeatedly threatening to do what he once falsely accused Free Press of doing: turning the agency into the “roving speech police.” And his anti-free-speech stridency has captured the attention of Elon Musk, who has leveraged his control of X’s algorithms to amplify Carr’s tweets — while positioning his broadband access company Starlink to benefit from potentially hundreds of millions of dollars in government grants that flow through the FCC.
As Masnick wrote: “Carr is smart and he knows exactly what he’s doing here. He is couching his extreme censorial desires in the language of free speech, knowing that most people won’t know enough or understand the details and nuances to recognize what he’s doing.”
Free Press is tracking Carr’s First-Amendment flip flops very closely, and exercising our right to call out Trump’s pick to chair the FCC whenever he fails to honor his sworn oath “to support and defend the Constitution of the United States.”
Carr is duty bound to ensure that government forces don’t restrict the speech of private individuals and entities. As the recent past shows, however, he routinely fails to protect free speech with any consistency, preferring to wrap himself in dishonest rhetoric about the First Amendment as he pursues his — and Trump’s — desire to censor others.
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Meet the Project 2025 Co-Author Who Wants to Run the FCC If Trump Wins
Brendan Carr knows who’s calling the shots in the modern GOP, so when he’s not fawning over Trump — a prerequisite for any potential appointee — he’s busy buttering up the world’s richest internet troll: Elon Musk.
Oct 03, 2024
By now you’ve probably heard of Project 2025 — the not-so-secret plan the Heritage Foundation cooked up for the next Republican administration, complete with a 900-page authoritarian playbook for overturning civil-rights laws, gutting environmental and labor protections, criminalizing abortion, and purging the federal government of any career workers who aren’t partisan loyalists.<
Project 2025’s contents are so noxious, unpopular and anti-democratic that even Donald Trump has repeatedly tried to distance himself from them — though at least 140 former Trump officials contributed to the plan.
What you might not know is that just one of Project 2025’s authors currently works for the federal government: Brendan Carr, the senior Republican on the Federal Communications Commission.
Carr has sided with big companies and against the public interest on nearly every important issue to come before the FCC. He’s also learned what it takes to get ahead in Trumpworld: telling lies, cozying up to the far right, insisting Trump can do no wrong, sucking up to billionaires and telling more lies.
Angling to be FCC chairman in a possible Trump administration, this once mild-mannered government lawyer has gone full-on Fox News fire-breather in a despicable-if-calculated attempt to get a promotion.
Carr’s vision for the next FCC
There are serious ethical concerns about a sitting commissioner participating in Project 2025, with no clear lines as to where Carr’s government role ends and his role as a private citizen working in his “personal capacity” begins. That’s why in July a group of 16 House members called for the FCC’s inspector general to investigate whether Carr “may be misusing his official position as an executive-level employee of the FCC to craft and advance a political playbook to influence the presidential election in favor of Donald Trump.”
Commissioner Carr’s contribution to Project 2025’s “Mandate for Leadership” is wrongheaded if relatively milquetoast compared to other chapters. He rants TikTok (which is not under the FCC’s jurisdiction) and China, unwisely calls for the elimination of Section 230 of the Communications Act, and endorses ways to enrich Elon Musk’s Starlink and right-wing broadcasters like Sinclair.
He makes it clear that under a future Chairman Carr, the FCC would do the bidding of big business unencumbered by notions of serving the public interest, helping those experiencing poverty or addressing racial disparities.
In a vacuum, this wouldn’t look too different from the reliably terrible ideas and complete corporate capture of previous Republican FCC chairs.
But Project 2025 isn’t a vacuum. It’s a cesspool.
The company Carr keeps
The priorities of the Heritage Foundation, which organized Project 2025, include banning the teaching of “critical race theory” (i.e., “accurate descriptions of U.S. history”) in public schools and universities, defaming the Black Lives Matter movement, denying climate change, amplifying false claims of voter fraud and attacking transgender kids.
Project 2025’s advisory board, organizational supporters and their known associates include an array of anti-abortion zealots, anti-vaxxers, Big Liars, book banners, climate deniers, conspiracy theorists, immigrant bashers and other assorted haters.
To achieve their Christian-nationalist goals, Heritage and its allies seek to undermine democratic checks and balances in favor of a system where near-absolute power is vested in the office of a strongman president. To quote the watchdogs at the Global Project Against Hate and Extremism, Project 2025 is “an authoritarian roadmap to dismantling a thriving, inclusive democracy for all.”
This is the company Carr keeps, and that alone should be reason enough to disqualify him from leading a future FCC.
But if you’re looking for more reasons, he’s providing plenty.
Fox News’ favorite commissioner
While the FCC is technically an independent agency, Carr’s binary worldview is simple: Democrats can do no right, and Trump can do no wrong.
Witness his recent appearance at a House hearing where he refused to speak out against Trump’s preposterous and dangerous suggestion that ABC should lose its broadcast licenses because its journalists tried to fact check the former president during a debate.
To be fair, fact-checking isn’t Carr’s forte. In an appearance on Fox Business’ Mornings with Maria show, the commissioner happily agreed with the host while she made numerous misleading claims — several of which originated from Carr’s Twitter feed — about the efforts of the FCC and the Biden administration to expand affordable broadband access.
While Carr wrongly claims the Biden administration has “connected no one,” the reality is that the administration’s Affordable Connectivity Program helped 1-in-6 U.S. households connect to the internet before congressional intransigence interrupted its funding.
Congress and the Biden Treasury Department also have awarded $10 billion for broadband deployment, but that’s not even half of it. A bipartisan majority in Congress committed another $42 billion to expand high-speed Internet access in every state to support infrastructure and adoption programs. Under the infrastructure law that Congress passed, each state and U.S. territory had to design a plan to receive its slice of the funds. The job of Biden’s National Telecommunications and Information Administration (NTIA) is to collect data, ensure state plans are in line with the law and allocate the funds to viable projects serving the communities that need it most.
Infrastructure projects like these take time, as they should given their historic nature — think rural electrification or the building of the U.S. highway system — but the benefits last far beyond a single presidential term.
For Carr and his partisan allies, the historic and popular effort underway to close the digital divide looks too much like a win for the other side, so they’ll say anything to undermine its progress. Fox — whose corporate bosses want a Republican-controlled FCC to do them special favors — is always ready to provide a platform.
Sucking up to Musk
Carr knows who’s calling the shots in the modern GOP, so when he’s not fawning over Trump — a prerequisite for any potential appointee — he’s busy buttering up the world’s richest internet troll: Elon Musk.
Carr is constantly caping for the would-be efficiency czar. At every opportunity, Carr bemoans “a campaign of regulatory harassment” the FCC is allegedly waging against Musk. The truth is that the FCC stepped in to prevent billions in taxpayer dollars from being wasted fattening Elon’s wallet while failing to get anyone better service — unless they were on a golf course or living on a highway median.
The background: During the waning days of the Trump administration, Musk’s Starlink satellite company snagged nearly $900 million in government subsidies with a promise to provide internet service to rural communities as part of a program known as the Rural Digital Opportunities Fund (RDOF).
Free Press was the first group to sound the alarm that a huge amount of taxpayer money was being wasted under RDOF to allegedly deploy internet service to uninhabited areas, big-box retail stores, airport runways and luxury resorts. Because the Trump FCC did such a shoddy job of designing the initial program, many of the beneficiaries — including Musk — were poised to cash in by promising to serve little pockets of land that already had service or where it was unlikely they’d ever sign up a single customer.
When FCC Chairwoman Jessica Rosenworcel took leadership of the agency and scrutinized the plans, officials identified $2.5 billion about to be wasted on projects that didn’t meet the program’s basic requirements. So they took the money back.
I’m old enough to remember a time when Republicans claimed they cared about saving taxpayer dollars and fighting government waste. But Brendan Carr is too busy licking Musk’s cybertruck shoes to worry about his hypocrisy.
Fortunately, Carr’s record is beginning to get some attention from members of Congress — but more need to speak out about his dalliances with the far right and his trouble telling the truth. His actions and associations should disqualify him from ever serving as FCC chairman, no matter who the president is in 2025.
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