Trumplican 6th Circuit Just Killed Net Neutrality (And Whatever Was Left Of Pathetic U.S. Broadband Consumer Protection)

Broadband

from the not-with-a-bang,-but-with-a-whimper dept

The telecom industry (with the help of the recent Trump Supreme Court), has been drooling for months at the prospect that the Trump-stocked courts would soon finally deliver the killing blow to FCC net neutrality protections (read: popular FCC rules designed to prevent telecom monopolies from abusing their market power to screw over customers and competitors).

As predicted, this week the Trumplican heavy Sixth Circuit delivered, in a ruling that blocks the Biden FCC’s plan to restore net neutrality rules. The entire ruling reads like it could have been directly ripped from a telecom lobbyist’s playbook, with lots of false claims about how these very basic regulations somehow threatened the open web and constitute a “heavy-handed regulatory regime”:

“Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime.”

To be clear, the FCC’s net neutrality rules were actually very modest by international standards. They had ample loopholes for ISPs to stumble through. They were never actually enforced with any consistency by a broadly feckless and captured FCC. And they saw massive popularity across a bipartisan majority of Americans. Right out of the gate calling the rules “heavy-handed” is telling.

As a refresher, the “net neutrality debate” is about more than just “net neutrality.” It’s about whether we want our consumer protection officials to protect broadband consumers from a monopolized and broken industry filled with extremely unpopular, predatory corporations that routinely raise the bar on shitty service, price gouging, and bad behavior.

The more specific legal debate here was whether ISPs should be classified as “information services” under Title II of the Communications Act, which would reduce the FCC’s authority over telecoms. Or as “telecommunications services,” which would broaden the FCC’s role in protecting consumers from fraud, improving 911 reliability, fighting consolidation, and shoring up cybersecurity standards.

But contrary to their public and press pretense, the telecom industry policy position on this has never been consistent; giants like AT&T and Verizon have waffled on whether or not they support one classification or the other depending on whether they’re trying to dodge FTC fines for lying to customers or trying to gobble up billions in taxpayer subsidies. Let’s repeat that, because it’s important. The very same telcos were perfectly happy to have broadband classified as telecommunications services when it meant they got extra subsidies.

The Real Goal Is No U.S. Corporate Consumer Protection Oversight Whatsoever

It routinely gets lost in the weeds of press and policy coverage, but “net neutrality” is a bit of a distraction.

Telecoms (and the various think tanks, lawyers, lobbyists, and consultants paid to love them) have opposed not just net neutrality, but absolutely any federal broadband consumer protection. It doesn’t matter whether we’re talking about basic pricing transparency requirements or accurate broadband maps; the telecom industry desperately wants to rip you off without pesky federal intervention.

They’re poised to get what they want, and more. As expected, the Sixth Circuit dismantling of net neutrality (and FCC authority more generally) leans heavily on the recent Trump Supreme Court Loper Bright ruling, which has taken a hatchet to the last vestiges of regulatory independence:

“Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a “telecommunications service” under Title II and therefore must abide by net-neutrality principles. But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute. Loper Bright. Instead, our task is to determine “the best reading of the statute” in the first instance.”

Corporations claim they wanted to kill Chevron Deference (which provided regulators with subject matter expertise some leeway to craft and interpret rules within the confines of Congressional law) because “regulators had run amok.” But the idea that the FCC (which struggles to stand up to AT&T and Comcast on a good day) has “run amok” has always been misinformation.

The reality is, with Congress in their back pocket and incapable of reform, corporations wanted to deliver a final killing blow to regulators that might get any bright ideas about trying to rein in their power or punish them for fraud. This has been dressed up in the press as some sort of noble, good faith institutional rebalancing (I recommend Law Professor Blake Reid’s dissection of this kerfuffle).

The court didn’t go quite as far as it could have in leveraging the recent Loper Bright ruling to dismantle the entirety of FCC authority over every last aspect of telecom, but the goal here certainly isn’t subtle: federal consumer protection of your broadband line is largely dead.

I’m not going to spend a lot of time dissecting the finer legalese here, because this is all bad faith bullshit. The ruling parrots the positions of AT&T and Comcast lawyers, keen to ignore logic, precedent, and history, and it’s not subtle about it. Arguing the finer, nuanced legal merits of this debate at this point is like trying to have a meaningful conversation with a damp walnut.

They want reporters and the public to treat this pseudo-legal, pseudo-logical circus with deference and seriousness. I won’t. It’s corruption with a lazy coat of paint.

Lose Lose

If the Sixth Circuit hadn’t ruled in favor of big telecom, incoming FCC boss Brendan Carr (R, AT&T) was poised to dismantle the rules anyway. You might remember Brendan from the first Trump FCC’s dismantling of net neutrality, which involved making up a DDOS attack to dismiss public outrage, and turning a blind eye to the industry’s use of dead and fake people to stuff the FCC comment section.

Brendan thinks consumer protection is diabolical government overreach, but bullying media and tech companies isn’t. There’s no real logic here. People and reporters shouldn’t get lost in the weeds: this is corporate power leveraging its influence over corrupt U.S. courts and captured regulators to undermine all corporate consumer protection authority, not just some piddly net neutrality rules.

That’s not to say net neutrality isn’t important. Big ISPs have long shown they’re willing to abuse market power. Ideally you’d have Congress pass a net neutrality law to end the regulatory ping pong at the FCC, but given Congress is too corrupt to function, that’s always been a non starter. There’s a lot of folks who like to make this point in the press (including AT&T) who know it’s a non-starter.

The Sixth Circuit ruling comes ironically (?) on the heels of the revelation that the telecom industry just suffered one of the worst hacking intrusions in American history, thanks (in part) to broad and mindless deregulation and our corrupt refusal to hold telecoms accountable for lax security standards. Or pass even the most basic of modern privacy or cybersecurity safeguards.

The underlying argument by telecoms, “free market” Libertarians, and many Republicans has long been that if you eliminate federal oversight of shitty U.S. telecoms, magic and innovation spills forth from the streets. That’s of course never been the case. Mindlessly eliminate federal corporate oversight of a regional monopoly like Comcast and AT&T and those entities just double down on their worst behaviors.

Usually because the same kind of folks pushing for mindless deregulation are also backing AT&T and Comcast’s efforts to ensure there’s no meaningful broadband competition.

As a result big telecom doesn’t innovate or compete. They’re regional monopolies who’ve effectively purchased their comfortable positions from corrupt state and federal bureaucrats, who work tirelessly to ensure that neither competition nor serious government oversight befouls their doorstep. One hopes the end of the net neutrality fight redirects attention toward the real problem: consolidated monopoly power.

The Sixth Circuit ruling is not all good news for big ISPs like Comcast and AT&T. The courts and legal precedent (whatever that’s worth anymore) have stated repeatedly that if the federal government is going to abdicate its federal consumer protection authorities, states are well within their legal right to pass their own net neutrality rules.

That said, while numerous states have net neutrality rules (like California, Washington, Maine, and Oregon), many more don’t. And among those that do, I highly suspect that enforcing net neutrality isn’t going to be a top priority given all the bottomless immigration, environmental, labor, and life and death legal fights that are headed in cash-strapped states’ direction during Trump 2.0.

It’s important to understand this is about much more than “net neutrality.” This is about corporate power leveraging corruption to take an axe to coherent federal consumer protection completely—under the pretense the folks doing it are operating in good faith with a serious eye on the confines of law.

And of course it’s about far more than telecom; post Loper Bright every industry across America is busy making similar arguments about every labor, consumer, public safety, and environmental ruling they don’t like, having massive impact on every industry and policy that touches every last part of your life. Corporations have achieved (another) generational victory in the dismantling of consumer protection.

The net neutrality fight may have been nuanced and wonky, but if if you think the broader existential, legal, and operational chaos coming as a result of this Trump 2.0 assault on federal governance is being overstated or will be in any way good for you (assuming you’re not an extremely racist and ignorant billionaire indifferent to mass suffering), you’re violently misreading the situation.

Filed Under: 6th circuit, broadband, consumer protection, consumers, corruption, fcc, high speed internet, net neutrality, telecom, title ii
Companies: at&t, comcast, verizon