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net neutrality
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 Taps Project 2025 Co-Author Who Cozied Up to Musk to Lead FCC
"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."
Nov 18, 2024
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."
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