Net Neutrality Is Dead (Again). Journalism Could Suffer.

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Net neutrality—or the idea that all digital information should flow through the internet unencumbered by restrictions and without internet companies showing favoritism toward some types and sources of content over others—sometimes feels like an immutable law of the modern world, like gravity or magnetic attraction. But in reality, it’s a political football that has been tossed back and forth for decades between open-internet advocates and free-market conservatives, who feel that neutrality rules are unnecessary and a brake on innovation and growth. Last week, the opponents of net neutrality won a significant victory when judges on the Sixth Circuit Court of Appeals ruled that the Federal Communications Commission didn’t have the right to impose such rules when it did so last year. Now critics say that the death of the rules could allow the internet to become distorted by partisan political and corporate interests. It could also make existing online even more difficult for news publishers and journalism in general.

Net neutrality first appeared as a concept in a paper written by Tim Wu—then an associate professor at the University of Virginia; now a Columbia University law professor—in 2003, published in the Journal of Telecommunications and High Technology Law. In the paper, Wu foresaw that “communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public’s interest in a competitive innovation environment centered on the Internet”—a prediction that was spot on. The idea of net neutrality, Wu wrote, is no different from promoting fair competition in any industry, ensuring that “the short term interests of the owner do not prevent the best products or applications becoming available to end-users” and preserving “a Darwinian competition among every conceivable use of the Internet so that only the best survive.”

This idea helped shape FCC rules, in 2004, that aimed at what the commission called “preserving internet freedom,” including a user’s right to choose any device they wanted to connect to an internet network, the applications they wanted to run, and the content they wanted to consume. In 2008, the FCC took action against Comcast for throttling the internet speed of cable customers who used a file-sharing system called BitTorrent, which Comcast didn’t like because it sucked up too much bandwidth. (Comcast paid a fine but did not admit any wrongdoing.) In 2014, the FCC issued an Open Internet Order that prohibited telecom and broadband companies from blocking their customers’ access to competing services or websites. The following year, the commission officially defined internet service providers (or ISPs) as “Title II” carriers, similar to phone or other utility providers, giving the agency control over their activities under the Telecommunications Act.

As Pete Vernon explained in CJR in 2017, this allowed the FCC to impose strict net neutrality rules on ISPs by classifying them as utilities. But during the first Trump administration, the FCC, now under the leadership of Ajit Pai, quickly moved to roll back this decision, arguing that net neutrality rules were slowing down investment in broadband development and that the “reins needed to be loosened to spur competition.” Criticism from open-internet advocates, including groups like the Electronic Frontier Foundation, was swift; Nilay Patel, the editor of The Verge, wrote that rolling back the Title II decision was a “massive corporate handout that will line the pockets of Comcast and AT&T, while doing nothing for the average American.” Despite the outcry, however, the Trump administration reversed the Title II designation in 2017.

After Joe Biden was elected president, the political football bounced back the other way: in 2021, Biden signed an executive order instructing the FCC to reinstate net neutrality rules. But for a variety of reasons, including administrative delays and open hearings on the FCC’s proposal, it took until last year for that to happen; when it did, the decision was quickly appealed to the Sixth Circuit, which led to the decision last week. While the reversal was not unexpected, the method the court used to arrive at its ruling was somewhat unusual, or at least novel: in effect, the judges decided that the FCC didn’t have the authority to reinstate net neutrality rules because it had never had the right to impose those rules in the first place. In other words, it ruled that the commission’s original reclassification of ISPs as Title II carriers under the Telecommunications Act was improper.

According to the judges, under the terms of that law, ISPs should be considered a Title I “information service”—a much broader category, and one that is not subject to FCC regulation—rather than a Title II service similar to telephone carriers. In the past, the court might have deferred to the FCC’s expertise in deciding how different services should be classified. Recently, however, the Supreme Court overturned the so-called standard of “Chevron deference,” which had previously given agencies broad latitude in how to apply laws. The Sixth Circuit cited the new precedent in its ruling. The judges agreed that the FCC had some expertise in how the internet works, but ruled that this expertise “cannot be used to overwrite the plain meaning of the statute.”

The verdict drew cheers from conservatives; Pai posted on X that the concept of net neutrality was a “tired non-issue,” while Marsha Blackburn, a Republican senator from Tennessee, said that it was a “solution in search of a problem,” and called the appeals court ruling “a win for internet freedom.” And defenders of the open internet predictably reacted with dismay. Wu, the professor who coined the term net neutrality, described the ruling as “blatant judicial activism that puts corporate interests over American democracy.” Chuck Schumer, the Senate minority leader, said that the court had given “a green light to big internet service providers to gouge consumers.” The Nation wrote that by ending net neutrality, “pro-corporate judicial activists have shredded the First Amendment of the internet.”

So what impact could all of this have on journalism? In 2017, when the FCC said that it was considering overturning net neutrality rules, I wrote for CJR that some observers of the industry believed the proposed changes could pose an existential threat. (I wrote that piece as a regular author of this newsletter; I’m writing today in a freelance capacity.) The Center for Internet and Society at Stanford, for instance, released a report arguing that the death of net neutrality could significantly worsen the economic situation for publishers; the history of ISPs’ behavior, the center argued, showed that eliminating net neutrality rules would “exacerbate negative trends in local news, and would likely lead to reduced quality, diversity, and choice.” While some of the threat might stem from intentional discrimination on the part of ISPs, the report said, the most serious risk was “collateral damage from a regime that favors large, established online players and makes it harder for new entrants to break through.”

Matt DeRienzo, the executive director of the group Local Independent Online News Publishers, also wrote in 2017 about what the repeal would mean for local journalism. Independent sites that had sprung up to fill gaps in the sector rely on “an Internet based on a level playing field for all publishers and readers, regardless of size or resources,” he argued. The end of net neutrality would mean that big internet and wireless providers could charge individual publishers for differing levels of speed and access, “a scenario in which a handful of big companies with deep pockets could squeeze out” small outlets. This, DeRienzo wrote, would “severely limit citizens’ access to information and could be devastating to local news.” Since then, there hasn’t been a lot of clear evidence that these negative effects have occurred. But they could feasibly have been obscured by the general decline in the industry’s financial health. Either way, the recent verdict is clearly not good news for beleaguered smaller publishers fighting for every competitive advantage they can get. 

One silver lining is that the court’s decision doesn’t affect state laws on net neutrality that are in place in California, Washington State, and Colorado. Meanwhile, Democrats at the FCC—including Jessia Rosenworcel, the outgoing chair of the commission—have called on Congress to create legislation that would enshrine net neutrality in law, once and for all. (When Trump returns to office, Rosenworcel is set to be succeeded by Brendan Carr, a conservative with an expansive view of the agency’s remit; Kyle Paoletta recently profiled him for CJR.) “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” she said. “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.” As Evan Greer, director of the nonprofit Fight for the Future, told Wired recently, “it’s a sad day for democracy when giant corporations can forum-shop for industry-friendly judges to strike down some of the most popular consumer protection rules in history.”

Other notable stories:

• Fires continue to rage across Los Angeles County: according to the LA Times, at least five people have been killed while more than two thousand buildings have been damaged or destroyed; last night, new fires broke out in the Hollywood Hills and Studio City areas, though firefighters were able to get something of a handle on both. Meanwhile, NBC News notes that the fires are “highly personal” for some of those covering them; Jacob Soboroff, an NBC reporter, filmed himself driving around the charred neighborhood of Pacific Palisades, where he grew up, and FaceTiming his mother from outside the ruins of his childhood home. And a reporter from Sky News, in the UK, spotted Karen Bass—LA’s mayor, who was out of the country when the fires erupted—at an airport and peppered her with questions, including as to whether she would consider resigning; Bass refused to answer, though she did hold a press conference on her return yesterday.
  
• According to NBC’s Julia Ainsley and Carol E. Lee, the incoming Trump administration is considering instructing immigration authorities to make a “showcase” raid at a workplace in the Washington, DC, area, perhaps as early as Inauguration Day—a “shock and awe” tactic that, as Politico suggested in sharing the story this morning, seems designed to get media coverage. Separately, Adrian Carrasquillo writes for Huddled Masses, a new immigration-focused newsletter from the never-Trump conservative outlet The Bulwark, that the media isn’t prepared to cover the consequences of Trump’s plan to deport people en masse. Journalists at major outlets told Carrasquillo that they fear their bosses will be cowed by Trump, or will focus on the border when the story is actually unfolding in workplaces and communities across the country.
  
• According to Semafor’s Max Tani, a senior editor at The Root—a site aimed at serving Black audiences that is one of the last remaining publications under the banner of G/O Media, a private-equity-backed company that has been selling off its media assets—recently urged staff to up their output of content in part to “help us offset the tragic loss of Stephanie,” a reference to Stephanie Holland, a Root writer who died last month. A G/O spokesperson told Tani that the editor’s memo to staff had been taken “out of context” and that it “included reasonable, industry standard goals that had been already communicated to the staff weeks ago,” but Tani writes that the memo and its reference to Holland “stunned some staff” at The Root.
  
• In international press-freedom news, Israeli forces detained Sylvain Mercadier, a French journalist who was covering their advance in a part of Syria abutting Israel; he was later freed, but alleged that the Israeli soldiers beat him and took his equipment. (Israel denied this.) Elsewhere, Iran released Cecilia Sala, a journalist for the Italian newspaper Il Foglio who had been detained in Iran shortly before Christmas despite having obtained official permission to report there. Her fate had become tied to that of an Iranian entrepreneur arrested in Italy on a US warrant; he remains in detention for now. And an English-language film out of Poland that uses AI to create a photorealistic depiction of Vladimir Putin is set for release this week—despite ethical concerns.
  
• And a new book by the Politico reporter Alex Isenstadt claims that a mole at Fox News leaked questions to Trump ahead of a town hall that he did on the network during the Republican primary last year; Fox said that it has no evidence of this occurring, but pledged to investigate. (Later last year, of course, Trump said that ABC’s broadcast license should be “TERMINATED” if it leaked questions to Kamala Harris ahead of a presidential debate; there is no evidence that this happened.) Isenstadt also reports that Trump seriously considered making Maria Bartiromo, the Fox Business anchor, his running mate, only to be talked out of the idea. CNN has more details.

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Mathew Ingram was CJR’s longtime chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.