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jessica rosenworcel
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the FCC voted to reinstate net neutrality rules, which were first introduced under the Obama administration but were repealed by former Republican FCC Chair Ajit Pai, who was appointed by President-elect Donald Trump.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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FCC Chair Rebukes DeSantis-Run Florida for Threatening TV Station Over Abortion Ad
Another critic said that "this is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent."
Oct 09, 2024
Federal Communications Commission Chair Jessica Rosenworcel on Tuesday called out a Florida agency for threatening a Tampa NBC affiliate with prosecution for airing an advertisement in support of a state abortion rights proposal on the November ballot.
"The right of broadcasters to speak freely is rooted in the First Amendment," Rosenworcel said in a statement. "Threats against broadcast stations for airing content that conflicts with the government's views are dangerous and undermine the fundamental principle of free speech."
Floridians Protecting Freedom's ad is designed to build support for Amendment 4, which if approved by voters next month would alter the Florida Constitution to outlaw pre-viability prohibitions on abortion care, including Republican Gov. Ron DeSantis' six-week ban, which took effect earlier this year and has already been shown to harm patients.
The 30-second ad features a Tampa resident who was diagnosed with brain cancer while pregnant. Caroline, who already had one child at the time, says that "the doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom."
"Florida has now banned abortion even in cases like mine," explains Caroline, who received abortion care in 2020, before the U.S. Supreme Court reversedRoe v. Wade and enabled bans like the one signed by DeSantis. "Amendment 4 is gonna protect women like me. We have to vote yes."
Florida journalist Jason Garcia revealed Monday that last week, John Wilson, general counsel at the state Department of Health (DOH), wrote to WFLA-TV vice president and general manager Mark Higgins, claiming that the ad contains information that is "categorically false" and constitutes a "sanitary nuisance," which could lead to criminal proceedings if it is not removed.
As HuffPostreported Tuesday:
It's unclear if the agency only sent the letter to the NBC affiliate, or to others as well. Either way, a threat like this could have a chilling effect on publicly advocating for the pro-choice measure, just weeks away from when it will be in front of voters. Florida's Department of Health did not respond to HuffPost's request for comment.
The sanitary nuisance law is meant to curb conditions that can threaten or impair Floridians' health. It normally pertains to issues like overflowing septic tanks and problematic garbage disposals.
Attorneys for Floridians Protecting Freedom swiftly sent a letter to WFLA leaders, arguing that the DOH interjection "raises serious First Amendment concerns—indeed, it reflects an unconstitutional attempt to coerce the station into censoring protected speech," and "the advertisement is true."
The DOH letter "vaguely outlines the limited instances where abortions are allowed in Florida but fails to provide any evidence showing that Caroline's statements are false," the lawyers wrote. "Caroline was diagnosed with stage four brain cancer when she was 20 weeks pregnant; the diagnosis was terminal."
Florida's ban has limited exceptions for abortions after six weeks—before many people even know they are pregnant. In cases of rape and incest, patients can receive care up to 15 weeks, if they can manage the burdensome paperwork. Abortions to protect the health or life of a pregnant person require two physicians to assert in writing that such care is necessary.
"The only instances where the Agency for Health Care Administration has provided guidance that abortions are permitted after six-weeks' gestation are when there is an immediate threat to the pregnant person's life," the lawyers noted. "Caroline's diagnosis was terminal. Practically, that means that an abortion would not have saved her life, only extended it. Florida law would not allow an abortion in this instance."
The group of attorneys is far from alone in criticizing the Florida DOH's attempt to get the ad off the air. Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression (FIRE), toldPopular Information that the department's letter stretches "the meaning of sanitary nuisance beyond recognition."
"Terr told Popular Information that even if the ad was false and violated Florida's sanitary nuisance law, the enforcement of the law against a political ad would be unconstitutional," the outlet added. "Terr notes that the First Amendment contains 'no general exception for false speech or misinformation, and that's because of the danger of the government having a general power to dictate what is true or false, especially when it comes to political speech.'"
As Slate's Mark Joseph Stern reported Monday:
Rebecca Tushnet, a professor at Harvard Law School and a First Amendment specialist, told me that the DeSantis administration's threat is "about as blatant a violation of the First Amendment as you'll see."
Jennifer Safstrom, director of the First Amendment Clinic at Vanderbilt Law School, condemned the administration's letter as an unconstitutional "weaponization of state law to suppress speech" that's "designed to have a chilling effect on advocates during a time critical to voter outreach." Alexander Tsesis, a professor at the Florida State University College of Law, said it seemed "absurd to threaten prosecution," and pointed out that stations' own "editorial decisions" are protected by the First Amendment. Ciara Torres-Spelliscy, a professor at Stetson Law, called the incident yet another episode in DeSantis' "long recent history of violating the First Amendment with abandon."
Seth Stern, director of advocacy of Freedom of the Press Foundation, similarly said in a Wednesday statement that "this is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent."
"It comes on the heels of his efforts to rewrite defamation law to make it easier for the rich and powerful to bankrupt their critics, his Stop WOKE Act stunt, and other similarly unconstitutional nonsense," Stern noted. "A governor who is confident in his policies and secure in his leadership would welcome debate and correct statements he believes are misleading rather than trying to weaponize trash disposal laws against the free press."
"But DeSantis is not that governor. His administration's conduct would be silly if it weren't such a transparent bully tactic," he added. "Floridians care about the First Amendment, which is why DeSantis' outrageous censorship campaigns keep failing. We hope the news outlets he targets will not only ignore him but loudly shame him."
The governor has come under fire for various actions throughout the fight for Amendment 4. As Garcia highlighted on social media, while targeting Caroline's ad, "the DeSantis administration is running taxpayer-funded television commercials attacking Amendment 4 on ESPN, CNN, Fox News, The Weather Channel, and more."
The ads are part of what the ACLU of Florida has called an "unconstitutional misinformation campaign," which also includes a government website. Additionally, as Common Dreamsreported last month, multiple state residents have had law enforcement come to their homes to confirm that they signed the petition to get Amendment 4 on the ballot.
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'Unacceptable': Court Blocks Net Neutrality Rules During Legal Battle
"Today's ruling is a setback, but a temporary one," said one campaigner. "The nation's communications regulator must be able to oversee the nation’s communications infrastructure."
Aug 01, 2024
Net neutrality advocates on Thursday sharply condemned a U.S. appellate court decision blocking implementation of the Biden administration's broadband policy while a legal challenge launched by the telecommunications industry moves forward.
Federal Communications Commission Chair Jessica Rosenworcel joined with Commissioners Anna Gomez and Geoffrey Starks in April to reclassify broadband as a public service under Title II of the Communications Act—undoing damage done during the Trump administration.
Internet service providers (ISPs) are fighting to stop the FCC's order. After temporarily delaying the rules last month, the U.S. Court of Appeals for the 6th Circuit just granted a stay. Oral arguments aren't expected until October or November.
"The 6th Circuit's stay will leave Americans without critical net neutrality protections and leave the Federal Communications Commission without its rightful authority over broadband," warned U.S. Sens. Ed Markey (D-Mass.) and Ron Wyden (D-Ore.) in a joint statement Thursday.
"We need net neutrality to protect the free and open internet and ensure that internet gatekeepers cannot control what we see, who we talk with, and how we communicate online."
"That is unacceptable," added the senators, who have led the fight for reviving net neutrality rules in Congress. "We need net neutrality to protect the free and open internet and ensure that internet gatekeepers cannot control what we see, who we talk with, and how we communicate online."
Advocacy groups were similarly critical. John Bergmayer, legal director at Public Knowledge, said that "it is unfortunate that the court granted the ISPs' request for a stay of the FCC's net neutrality rules. These rules would bar broadband providers from throttling connection speeds, blocking websites, and discriminating in favor of preferred internet traffic."
"Millions of Americans have expressed support for these rules by submitting comments with the FCC urging the agency to enact these protections," he noted. "Consumers need net neutrality rules as well as the other consumer benefits provided by the FCC's recognition that broadband is a 'telecommunications' service, including online privacy, public safety and national security, and affordable, competitive broadband service."
"Despite this court's action, we remain confident that the FCC's rules—and classification of broadband as a telecommunication service under Title II of the Communications Act—will ultimately be upheld, just as they were before—or that Congress will step in to reinstate these popular and necessary protections," Bergmayer added.
Free Press vice president of policy and general counsel Matt Wood also characterized the stay as unfortunate but stressed that "we believe that the litigation to follow will dispel these unfounded phone-and cable-company arguments about Title II's supposed harms and about the commission's authority to classify broadband providers properly under the statute."
"Industry lobbyists and other net neutrality opponents have argued, loudly but cynically, that the Trump-era repeal somehow spurred broadband deployment and speed increases, claiming that the rules' presence impairs those upgrades. This is nonsense, as Free Press has shown time and time again by examining the companies' own financial statements and investor briefings," he highlighted. "Today's order unfortunately accepts the false premise that the FCC's rules prevent broadband providers from rolling out new products. ISPs make such claims only in court; they never make them to their investors."
"Today's ruling is a setback, but a temporary one. The nation's communications regulator must be able to oversee the nation’s communications infrastructure," Wood continued. "While we hit a procedural hurdle today, Free Press is determined to see the FCC's decision go into effect. The 6th Circuit will still need to evaluate the ISPs' and FCC's arguments in full when it reviews the case on the merits. We're confident that we will ultimately prevail in this case, even in the wake of this disappointing outcome and even in light of recent Supreme Court decisions aimed at weakening federal agencies' oversight."
Rosenworcel was also determined to defend the FCC's decision, declaring Thursday that "the American public wants an internet that is fast, open, and fair. Today's decision by the 6th Circuit is a setback but we will not give up the fight for net neutrality."
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