Bluesky

The ability of the Federal Communications Commission to establish and maintain net neutrality rules was overturned on the second day of 2025 by a trio of Republican judicial appointees on the US Court of Appeals for the Sixth Circuit. The three-judge panel’s decision, which upended the FCC’s authority to require Internet service providers to treat all communications equally, dealt a serious blow to efforts to protect the free flow of information that underpins American democracy. What makes the ruling doubly devastating is the fact that the incoming Republican administration—and the corporate-aligned leadership of the Republican-controlled Congress—has shown no sympathy for net neutrality. In fact, President-elect Donald Trump’s pick to head the FCC, Brendan Carr, literally wrote the FCC chapter in the Project 2025 memorandum that will serve as an outline for the new administration’s assault on regulation in the public interest.

The appeals court ruling represents a dramatic setback for the multiyear drive by civil rights, civil liberties, and media reform groups to maintain an open Internet in the face of free-spending lobbying by telecommunications corporations that seek to rewrite the rules in their favor. The telecoms have long wanted to gut net neutrality rules, which have been aptly described as “the First Amendment of the internet.” Specifically, they have sought the leeway to create a multi-tiered system of communications where there are fast lanes for missives from multinational corporations and powerful political interests, and slow lanes for civic groups and grassroots organizations, which lack the ability to pay for prioritized services.

By rejecting the authority of the Federal Communications Commission to regulate broadband services in the interest of consumers and an open discourse, the conservative jurists—two of whom were appointed by former President George W. Bush, and one of whom was appointed by former President Donald Trump—have tipped the balance toward the telecommunications giants and economic and political elites that can pay to control communications in the United States. And the FCC will, in all likelihood, stand on the sidelines as a toothless tiger.

“A Federal Court has now decided that the FCC doesn’t get to protect the free and open internet,” explained the tech-savvy industry observers at Gizmodo. Wired headlined its report on the decision, “The Death of Net Neutrality Is a Bad Omen.” Jenna Leventoff, the senior policy counsel at the American Civil Liberties Union, said, “[Thursday’s] ruling to overturn net neutrality will have a devastating effect on free speech online.” And Evan Greer, the director of the activist group Fight for the Future, which organizes “for a future where technology is a force for liberation—not oppression,” decried the ruling as an antidemocratic rejection of the popular will. “Millions of people from across the political spectrum were part of the movement that fought for and won strong net neutrality rules at the FCC because no one wants their cable or phone company to be able to scam them or control what they see and do online,” said Greer.

At the heart of the problem is the fact that Congress never codified net neutrality, meaning that the FCC’s standards would forever be in flux due to changes in presidential administrations, which shape and reshape the membership of the commission, and decisions by courts with little understanding of the way corporations will use technology for their own gains.

The outgoing Biden administration had sought to establish clear protections for an open Internet, with President Biden issuing a 2021 executive order urging the FCC to reinstate the net neutrality rules that were outlined during Barack Obama’s presidency and then upended during Trump’s first term. Biden appointed supporters of net neutrality to the FCC and, in the spring of 2024, the Democratic majority on the commission issued its “Safeguarding and Securing the Open Internet” rule. FCC chair Jessica Rosenworcel explained at the time of the rule’s release that “in a modern digital economy we should have a national net neutrality policy and make clear the nation’s expert on communications has the ability to act when it comes to broadband. This is good for consumers, good for public safety, and good for national security. And that is why we are taking this action today under Title II of the Communications Act.”

Rosenworcel has often made the point that the Biden FCC’s embrace of net neutrality came in response to overwhelming popular demand.

“Let’s start with consumers,” said the chair.

They spoke out in droves when this agency repealed net neutrality. They jammed our in-boxes, overwhelmed our online comment system, and clogged our phone lines. They clamored to get net neutrality back.…

Consumers have made clear to us they do not want their broadband provider cutting sweetheart deals, with fast lanes for some services and slow lanes for others. They do not want their providers engaging in blocking, throttling, and paid prioritization. And if they have problems, they expect the nation’s expert authority on communications [the FCC] to be able to respond.

The FCC chair was right on all those points.

Unfortunately, net neutrality foes succeeded in getting their case for blocking the actions of Rosenworcel and the current FCC heard by a panel of judges sitting on one of the country’s most right-wing and pro-corporate judicial circuits. That panel decided, unanimously, to embrace a new standard, set by the Supreme Court’s June 2024 Loper Bright Enterprises v. Raimondo decision, which overturned a 40-year-old precedent that had given federal agencies flexibility to interpret laws governing areas of commerce they regulate. The Loper Bright decision opened up fresh avenues to undermine federal oversight, representing a big win for corporations and a profound threat to federal regulatory interventions on behalf of consumers, civil society, and democracy. And it has proven to be just that in the case of net neutrality.

While defenders of the FCC’s authority to advance net neutrality can appeal the Sixth Circuit ruling to the Supreme Court, it is unlikely that the conservative majority on the high court will object to the lower court’s ruling. And, even if they were to do so, the incoming conservative majority on Trump’s FCC is expected to oppose not just net neutrality but also the expansive vision of the commission’s role as a defender of consumers and the democratic discourse.

Congress could still intervene, as Rosenworcel noted. “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” said the outgoing FCC chair. “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.”

Matt Wood, the vice president and general counsel for the media reform group Free Press, which jointly filed a brief with the Benton Institute, the National Association of Regulatory Utility Commissioners, the Open Technology Institute, and Public Knowledge in defense of the FCC’s April 2024 ruling, said, “Despite this setback, Free Press will continue to fight—in the courts, in Congress, and everywhere—for an open, fair, and free communications network for all.”

Some of the best options for defending net neutrality will be in the states, where California and other progressive jurisdictions have made efforts to protect an open Internet.

Ultimately, however, whether the fights are at the federal, state, or local levels, the responsibility to renew and extend net neutrality will fall to the voters.

For many years, media scholar Robert W. McChesney, with whom I’ve written a number of books on media and democracy issues, has argued that “the great democratic vision that started the Internet” will be preserved only if the American people demand that preservation with their votes, petitions, and letters to members of Congress. That argument is valid now more than ever.

Only with a Congress that is committed to restoring net neutrality at the national level, and to renewing the power of the FCC to defend a free and open Internet, will that democratic vision be restored.