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The ruling creates a "dangerous regulatory gap that leaves consumers vulnerable and gives broadband providers unchecked power over Americans’ internet access," said one advocate.
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the FCC voted to reinstate net neutrality rules, which were first introduced under the Obama administration but were repealed by former Republican FCC Chair Ajit Pai, who was appointed by President-elect Donald Trump.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."
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.
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.
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.”
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.
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.
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.
"For more than a year now Carr has been auditioning for this job," said one critic. "His groveling is now being rewarded with a promotion, and it's the American public who will pay a heavy price."
U.S. President-elect Donald Trump claimed on Sunday that his nomination of Brendan Carr to chair the Federal Communications Commission would elevate "a warrior for free speech," but one veteran journalist warned the selection of Carr is a "key step in Trump's assault on the free press," while others expressed concerns about the future of net neutrality and censorship on social media platforms.
A portion of Project 2025—the far-right policy document that Trump repeatedly said he had nothing to do with—was authored by Carr, who has been an FCC commissioner since 2017.
Carr wrote in Project 2025 about "reining in Big Tech" and called for Section 230 of the Communication Act to be limited in order to stop what conservatives have called discrimination against right-wing views by Facebook, Google, and other Silicon Valley giants. Carr was the only current government official to co-author Project 2025.
Section 230 affirms that online platforms are not the "publishers" of users' content and are permitted to use content moderation "in good faith" as they see fit, to limit content that is violent, bigoted, or otherwise objectionable.
The U.S. Supreme Court this year affirmed in Netchoice v. Paxton that content moderation is protected by the First Amendment, but both Carr and Trump have decried Section 230 as censoring conservative views.
"When people tell you what they plan to do, you should believe them. Brendan Carr has clearly stated that he plans to attack Section 230 and force online platforms to carry sludge," said Adam Kovacevich, founder and CEO of progressive tech coaltion Chamber of Progress. "That's why Democrats need to defend Section 230, which protects content moderation and keeps the Internet from becoming a cesspool."
Last week, Carr wrote to tech companies including Google, Meta, Microsoft, and Apple, accusing them of silencing conservatives by partnering with NewsGuard, which rates the credibility of news websites, and calling the companies a "censorship cartel."
As an FCC commissioner, said City University of New York journalism professor Jeff Jarvis, Carr "is already trying to force platforms to carry right-wing propaganda."
Meanwhile this is terrible news for the internet and freedom of expression. Carr is already trying to force platforms to carry right-wing propaganda. Compelled speech is not free speech. Trump picks Brendan Carr as FCC chairman www.washingtonpost.com/technology/2...
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— Jeff (Gutenberg Parenthesis) Jarvis (@jeffjarvis.bsky.social) November 18, 2024 at 7:20 AM
Carr also called for social media platform TikTok to be banned in the U.S. if it does not cut ties with its China-based parent company, ByteDance.
TikTok sued the U.S. government earlier this year over the Protecting Americans From Foreign Adversaries Act, which threatens the company with a ban unless ByteDance sells the platform.
Supporters of net neutrality rules, the Obama-era regulations that stop internet service providers from blocking or throttling content and creating "fast lanes" for web companies that pay a fee, condemned Carr's nomination, saying the commissioner will "kill" the regulations that the Biden FCC has worked to revive.
"He's committed to ending net neutrality and undermining the FCC's ability to hold accountable companies like AT&T, Comcast, and Verizon for abusing internet users," said Craig Aaron, co-CEO of public advocacy group Free Press.
Carr's nomination was announced two weeks after the commissioner claimed on social media that Vice President Kamala Harris' appearance on NBC's "Saturday Night Live" was "a clear and blatant effort to evade the FCC's Equal Time rule."
The FCC's equal time guidelines do not require networks to "provide opposing candidates with programs identical to the initiating candidate." A spokesperson for the commission said in a statement after Carr's complaint that "the FCC has not made any determination regarding political programming rules."
The FCC is barred from punishing TV networks for their editorial decisions in most cases, but with Trump having called on the commission to strip companies like NBC and CBS of their licenses because of what he views as unfair coverage of him, advocates expressed concern that Carr could use his position to pressure and threaten networks.
"Be wary of any reporting that regurgitates Trump's claim that Brendan Carr is a 'warrior for Free Speech,'" said Tim Karr, senior director of strategy and communications for Free Press. "He's actually the opposite, willing to use the FCC to go after TV broadcasters that are 'unfair' to Trump, or to punish fact-checkers, like NewsGuard, that vet Trump's many false claims."
Carr has aligned himself with billionaire Tesla and SpaceX CEO Elon Musk, who spent nearly $120 million to support Trump's presidential campaign. The commissioner dissented in 2022 when the FCC revoked an $885 million grant that had been given to Starlink, Musk's satellite internet provider; the Democratic-led FCC said Starlink didn't meet the requirements for the commission's Digital Rural Opportunity Fund.
"Carr wants to use his perch to funnel money to companies run by Trump cronies like Elon Musk, while punishing opponents by increasing their fees or ending subsidies and contracts," said Evan Greer, director of Fight for the Future. "In short, Carr plans to use the full weight of the FCC to help billionaires and authoritarians while abandoning the agency's actual mission of protecting the public interest."
Carr, said Aaron, "has been campaigning for this job with promises to do the bidding of Donald Trump and Elon Musk," and "got this job because he will carry out Trump and Musk's personal vendettas."
"While styling himself as a free-speech champion, Carr refused to stand up when Trump threatened to take away the broadcast licenses of TV stations for daring to fact check him during the campaign," said Aaron. "This alone should be disqualifying. The public needs a watchdog looking out for them at this independent agency, not an attack dog for Trump and Musk."
"His close relationships with far-right zealots and his craven cozying up to the CEOs he's supposed to be regulating tell you everything about the kind of FCC chairman he will be," he added. "For more than a year now Carr has been auditioning for this job, desperate to gain Trump's attention and show how he's willing to bend the rules and twist the law to serve this administration. His groveling is now being rewarded with a promotion, and it's the American public who will pay a heavy price."