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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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30+ Groups Relaunch Grassroots Campaign as FCC Moves to Restore Net Neutrality
"We know that Big Cable is going to pull out all the stops in an attempt to water down or even block the rules," said one campaigner. "That's why we're mobilizing the grassroots."
Oct 24, 2023
Following the Federal Communications Commission's vote last week to start restoring FCC oversight of broadband and net neutrality rules rolled back under former President Donald Trump, more than 30 groups relaunched the Battle for the Net campaign.
"We are proud to relaunch Battle for the Net along with over 30 organizations representing millions of Americans," said Demand Progress communications director Maria Langholz in a statement. "It is absolutely critical for the FCC to succeed in this process to restore net neutrality and Title II protections."
Despite intense opposition from internet providers, broadband was previously treated as a public service under Title II of the Communications Act. However, in 2017, then-FCC Chair Ajit Pai—a former telecom industry lawyer appointed by Trump—led an unpopular rollback of the policy.
After the U.S. Senate last month finally confirmed Commissioner Anna Gomez to a long-vacant FCC seat, Chair Jessica Rosenworcel announced her plan to try to revive the policy—which prevents providers from blocking legal content, throttling speeds, and creating fast lanes. Commissioner Geoffrey Starks joined the two women in supporting the restoration effort.
"We applaud the FCC for moving forward this proposal, and especially commend Chair Rosenworcel's leadership on this issue," Langholz said Tuesday. "In addition to the commission, we impel members of Congress to stand with their constituents by supporting Title II reclassification."
The campaign website, BattleForTheNet.com, identifies "next steps" as FCC reinstatement of net neutrality and pressuring Congress to enshrine the policy into law.
"As the commission moves forward with this rulemaking, we know that Big Cable is going to pull out all the stops in an attempt to water down or even block the rules," Langholz explained. "That's why we're mobilizing the grassroots, making use of the years of organizing we and our partner organizations have done, to push this proposal through the finish line."
The campaign site currently features a form allowing U.S. voters to let members of the commission and Congress know that "I strongly support the FCC's current effort to reinstate net neutrality and Title II authority, which is critical for an open internet, expanding broadband access, privacy protections, and public safety."
The pre-written comment, which users are able to personalize before submitting, adds that "the agency must move forward a strong rule that rejects zero-rating, ensures interconnection, and allows for state preemption."
Caitlin Seeley George, campaigns and managing director at Fight for the Future, highlighted that "net neutrality has so much support across the political spectrum. And we've seen this support in action as millions of people have taken action over the years at the Battle for the Net hub in support of these commonsense protections against Big Telecom's abusive power."
"Now that the hurdles blocking the FCC from reinstating net neutrality have finally been cleared, they must listen to all of these supporters and swiftly move forward," she stressed. "Internet providers will do all they can to block the agency, spending obscene amounts of money to retain their power. But the FCC must listen to experts and the general public, and move forward with a strong rule to restore net neutrality and Title II protections."
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A Dirty Campaign Defeated Gigi Sohn. We Can't Let it Happen Again.
The failure of Democratic senators to advocate for their own nominee means that companies like Comcast and Fox will likely only double-down in the future on the kinds of deceitful tactics they deployed against a nominee who would have been an incredible addition to the FCC.
Mar 08, 2023
On Tuesday, Gigi Sohn withdrew her nomination to the Federal Communications Commission.
This ends a two-year fight to put an accomplished public servant in the important fifth seat on the FCC. In the —after nearly 500 days, multiple confirmation hearings, and a relentless industry-orchestrated campaign against her—Sohn didn't have enough votes in the Senate to move forward.
I'm furious—and determined to make sure this doesn't happen again.
The dirty campaign to stop Gigi Sohn
They're celebrating today at Comcast and Fox, where their lobbyists deserve most of the credit for concocting lies to derail Sohn's nomination. They falsely portrayed her as radical and divisive, even though her years of experience tell a different story—about a highly regarded expert who has reached across political divides to support communications policies that help people.
Republicans who willfully spread those lies are thrilled, too. Their campaign of vile dog whistles, homophobic innuendo and false outrage worked. In fact, it was too easy.
But they're not the only ones to blame: The failure of Democratic leaders to defend their nominee cost the agency—and the nation—a true public servant. Their missteps and unforced errors were many.
From the start, infighting in the Biden administration delayed the nomination of a new FCC chair and commissioner for months—meaning Sohn wasn't nominated until late October 2021 and then got little time during debates around the infrastructure bills. Instead of moving on this nomination right away when the Biden team had the most political capital—they did it when they had the least.
While the GOP ganged up on her, most Democrats sat back, either using their time on the dais to ask questions about their home states or repeat industry-written talking points.
Then Senate leaders made Sohn endure an unprecedented three confirmation hearings, giving the right-wing noise machine numerous opportunities to badger her while extracting zero concessions from the other side. Despite her composure in the hot seat, this stage let Sohn's opponents test out numerous lines of attack. Sen. Ted Cruz (R-Texas) got endless opportunities to fulminate about her random retweets, while Sen. J.D. Vance (R-Ohio) cosplayed as a culture warrior from his new perch on the Commerce Committee.
While the GOP ganged up on her, most Democrats sat back, either using their time on the dais to ask questions about their home states or repeat industry-written talking points. (Notable and laudable exceptions who came to Sohn's defense include Sens. Ed Markey and Tammy Baldwin.)
Unfortunately, the failure of more Democratic senators to advocate for their own nominee means that companies like Comcast and Fox will likely only double-down in the future on the kinds of deceitful and dirty tactics they deployed against Sohn. What other lessons could they draw from how easily senators folded in the face of easily fact-checked lies and slanders? And what potential FCC nominee would want to subject themselves to this kind of character assassination?
A leadership failure
Neither the White House nor Senate Majority Leader Chuck Schumer succeeded in getting the votes Sohn needed when she got through committee and to the verge of a floor vote last year. They didn't put enough pressure on holdout senators or create any real political costs for the holdouts' refusal to back the administration's nominees. Worse still, President Biden and Vice President Harris actually feted ISP execs in the Rose Garden—even as those same companies were sabotaging Sohn.
It says a lot about who they're willing to fight for—and who they won't.
Without real pressure from the top, rank-and-file Democrats invented excuses for why they couldn't vote before the midterms—and, once those were over, immediately recycled the same rationalizations about the 2024 election. As much as I might wish the FCC were a top-tier election issue, exactly zero swing voters are going to the polls thinking about Gigi Sohn. Yet multiple senators acted like a vote for their own party's nominee could sink their reelection chances.
Politicians who should know better all of a sudden took seriously the disingenuous pay-to-slay attacks by sock-puppet front groups (including one led by former North Dakota Sen. Heidi Heitkamp, now on the corporate payroll). I'm not sure what's worse: If they just made these excuses to placate corporate donors, or if they actually believed them.
What does it say when Democratic senators—like Sens. Cortez-Masto, Kelly, Rosen, and Tester, who all failed publicly support Sohn—take the specious claims of a disreputable group like the Fraternal Order of Police more seriously than they do the support of 400 of the nation's largest civil-rights, civil-liberties, labor and public-interest groups? What does it mean when they don't just let the lies fester but actually promote them? It says a lot about who they're willing to fight for—and who they won't.
The next battle
This defeat has implications that go far beyond the FCC. The Republicans and their Democratic enablers are setting out markers for who's allowed to serve in government. They made clear that public servants will be pilloried while ex-corporate lobbyists sail through. Women and LGBTQIA+ folks—Sohn would have been the first lesbian to serve as an FCC commissioner—will be slandered. Tweeting about police violence can be disqualifying (in the Senate, retweets do equal endorsements). Questioning the propriety of Fox News—even as it's being exposed for aiding and abetting election lies and insurrection—is unacceptable. A basic understanding of U.S. history and racism may be disqualifying.
Of course, this is bad news for the FCC, too.
At a moment when media and tech are intertwined with every facet of our lives, our politics and the very state of our democracy, this vital agency cannot fully do its job. Which is just how the industry wants it.
One of the best things the Biden administration has done since 2021 is securing $65 billion for broadband expansion. FCC Chairwoman Jessica Rosenworcel has been making the most of the hand she was dealt, but a deadlocked FCC makes it harder to implement and maintain those programs and spend those funds in the best way possible. Net Neutrality and the restoration of Title II will remain in limbo without a fifth vote at the agency. As Sohn herself wrote in the statement announcing her withdrawal: "It means that the FCC will not have a majority to adopt strong rules which ensure that everyone has nondiscriminatory access to broadband, regardless of who they are or where they live."
At a moment when media and tech are intertwined with every facet of our lives, our politics and the very state of our democracy, this vital agency cannot fully do its job. Which is just how the industry wants it.
The next test is already here. The Biden administration needs to come up with a new nominee to the FCC, and it may be tempted to nominate an industry-friendly choice—someone who can "get through" and avoid a larger political fight. We must oppose and reject any return to business as usual that furthers industry capture of the FCC.
Instead, we need to demand an independent candidate with public-interest bona fides and a clear commitment to racial justice and civil rights. They must show they're willing to stand up to lies. They must be unequivocal in their support for restoring the FCC's authority, and making sure that the internet is open, affordable, available, and reliable for everyone. They must demonstrate a commitment to engaging the public, not just meeting with lobbyists.
This loss stings. Gigi Sohn deserved better. But we cannot let the industry pick its own regulators ever again.
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