In a major victory for cable companies and telcos that raises concerns about the Federal Communications Commission's regulatory authority in the wake of recent U.S. Supreme Court rulings, the 6th U.S. Circuit Court of Appeals has struck down the agency’s net neutrality rules.

The rules require broadband operators to treat all internet traffic equally and banned them from giving preferential treatment to some sites by speeding up or slowing down consumer access.

The FCC had implemented net neutrality rules under former President Barack Obama, which were then dropped during the Trump administration. Last April the FCC voted 3-2, along party lines, to reinstate the rules in its "Safeguarding and Securing the Open Internet Order.” Industry groups then sued the FCC to block their implementation.

The 6th Circuit justified its decision to strike down the rules in part by referring to the U.S. Supreme Court’s decision last June in Loper Bright Enters. v. Raimondo. That ruling rejected the longstanding Chevron doctrine giving regulatory agencies a fair amount of latitude in implementing their rules.

The reversal highlights the growing challenges the FCC is likely to face in the wake of the Loper Bright ruling.

“[U]nlike 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 Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ) … Using ‘the traditional tools of statutory construction,’ id., we hold that Broadband Internet Service Providers offer only an ‘information service’ under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service'’ provision of the Communications Act, id. § 153(51). Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a ‘commercial mobile service’ under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC's Safeguarding Order.”

Following the ruling, FCC chair Jessica Rosenworcel said in a statement: “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.”

In a statement commissioner Brendan Carr applauded the ruling, saying, “I am pleased that the appellate court invalidated President Biden’s Internet power grab by striking down these unlawful Title II regulations. But the work to unwind the Biden Administration’s regulatory overreach will continue.”

“Today’s decision is a good win for the country, Carr also noted. “Over the past four years, the Biden Administration has worked to expand the government’s control over every feature of the Internet ecosystem.”

“President Biden’s decision to impose these Title II regulations represented a break from the bipartisan consensus established by a Republican Congress and a Democrat President and enshrined in law nearly thirty years ago—a consensus that provided a stable regulatory framework that allowed the Internet in America to flourish,” he said.

The lengthy full statement from Carr can be found here.

WASHINGTON, D.C.—FCC Chairwoman Jessica Rosenworcel has announced that she has shared with her fellow commissioners draft final rules that, if adopted, would strengthen the security of the nation’s public alert and warning systems—the Emergency Alert System and Wireless Emergency Alerts—against emerging cybersecurity threats.  

If adopted by a vote of the full Commission, the draft rules would require communications providers that participate in these systems to create, update, and implement cybersecurity risk management plans, the FCC reported. 

The Emergency Alert System delivers warnings to the public thorough radio and television. Wireless Emergency Alerts deliver warnings to consumers’ wireless phones.

The rules would also require Emergency Alert System participants, such as broadcasters and cable providers, to notify the Commission of equipment defects within 24 hours of discovery, which would provide the Commission with greater awareness of system availability and help identify persistent technical problems in this equipment.

In addition, the rules would ensure that Emergency Alert System participants have contingency plans for delivering alerts to the public.  

Just last week, the Department of Homeland Security urged regulators to ensure that owners and operators of communications networks and other U.S. critical infrastructure are implementing controls to improve their security and resilience to cybersecurity threats, including through the establishment of minimum cybersecurity requirements.

In October 2022, the Commission sought comments on proposals to improve the cybersecurity of the nation’s emergency alert systems in response to various security lapses and incidents.  In October 2023, the Commission and CISA co-hosted a public roundtable on alerting cybersecurity. 

The FCC said that the draft final rules, "which would reduce risks to communications networks, in keeping with a whole-of-government effort to establish cybersecurity requirements to support national security and public safety, are informed by this stakeholder input."  

As is the general practice for items circulated for a vote, the FCC reported that the rules would be released if adopted by the Commission.

WASHINGTON, D.C.—The FCC has issued a Second Report and Order clarifying its rules regarding the disclosure of foreign sponsorship of programming on broadcast stations.  

Worried about the influence of Russian, Chinese and foreign government disinformation on recent U.S. elections, the FCC implemented new rules in 2022 imposing additional requirements on how stations investigate the sources of their programming and determine whether the programming was sponsored by foreign governments. 

However, the NAB filed suit against the expanded rules in 2022 and the U.S. Court of Appeals for the District of Columbia Circuit vacated some of those rules. "We hold that the FCC cannot require radio broadcasters to check Federal sources to verify sponsors’ identities,” the Court ruled. “We therefore vacate that aspect of the challenged order.” The decision would not remove the requirement that stations tell viewers when they are airing foreign government-sponsored programming. 

In a statement regarding the updated rules, FCC chairwoman Jessica Rosenworcel argued that “the principle that the public has a right to know the identity of those who use the public airwaves is a long-standing tenet of broadcasting. Today we clarify our rules for broadcasters by establishing a process to inform consumers when what they hear or see over the air has been provided by a foreign government. Our action today is about supporting transparency and democratic values. For instance, if a foreign government (like the Chinese government) pays to broadcast programming or campaign advertising, a disclosure is required at the time it is aired (simply saying it is from the Chinese government). As listeners, viewers, and citizens this is something we are entitled to know.”

In the Second Report and Order (Second R&O) issued on June 10, the FCC noted that “we address a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that vacated one of the foreign sponsorship identification requirements established in the First R&O.  We replace the vacated verification requirement with an approach that avoids the investigatory obligation on the part of licensees that was at issue in NAB v. FCC. The new approach provides licensees with two options for demonstrating that they have met their duty of inquiry in seeking to obtain the information needed to determine whether the programming being provided by a lessee is sponsored by a foreign governmental entity. Our adopted approach addresses concerns about burdens and complexity raised by commenters in response to the Second Notice of Proposed Rulemaking (Second NPRM).” 

“Furthermore, in this order, we clarify that our foreign sponsorship identification rules do not apply to sales of advertising for commercial goods and services to the extent such programming falls within the exemption contained in section 73.1212(f) of our general sponsorship identification rules,” the FCC said. “In addition, we find that our foreign sponsorship identification rules will not apply to political candidate advertisements, but will apply to issue advertisements and paid public service announcements (`paid PSAs’).  We also confirm that our rule changes do not alter our finding in the First R&O that noncommercial and educational broadcast stations (NCEs) are not likely to fall within the ambit of the foreign sponsorship identification rules.”

But the FCC declined “to create an exemption from the rules for religious programming and locally produced and/or distributed programming. We also conclude that, when a lessee and licensee enter into recurring leases for the same programming, the licensee will be required to exercise its reasonable diligence obligations under the rule only once per year with respect to that particular lessee and that particular programming. With respect to the rule changes adopted today, we grandfather lease agreements already in effect at the time of the required compliance date for these newly-adopted modifications, determining that such leases will need to come into compliance either at the time of renewal or when the parties to the agreement enter into a new lease. Finally, we clarify the obligations of section 325(c) permittees under the foreign sponsorship identification rules.”

Both Commissioner Nathan Simington and Commissioner Brendan Carr both issued separate statements opposing parts of the revised rules. 

“On appeal, the D.C. Circuit vacated a separate portion of the 2021 rules that required broadcasters to affirmatively investigate potential foreign sponsors,” Carr wrote. “Today’s Order fixes that defect—lawfully so, in my view.  If the Order were limited to correcting this narrow issue on remand, I would have supported it in full. But this Order goes further.  It changes the 2021 definition of `lease’ by eliminating the `short-form advertisement’ exception. The Order now requires broadcasters to comply with the foreign sponsorship rule for all third-party use of airtime, with two key exceptions: (1) political candidate advertisements; and (2) advertisements that meet the commercial exemption provisions in section 73.1212(f) of our rules.” 

“In my view, the FCC did not provide fair notice that it might redefine `lease’ in this fundamental way.  After the 2021 rules were adopted, broadcast interests filed a petition seeking clarification on the meaning of `short-form advertisement.’ The petition asked for a clearer and less burdensome definition, not for the FCC to eliminate the exception altogether. A single paragraph in the Second NPRM seeks comment on this petition. As that paragraph makes clear, the FCC did not contemplate eliminating the `short-form advertisement’ carveout.  And to my knowledge, no party in this proceeding asked the FCC to do so.  Adopting rule changes nobody could have reasonably anticipated is a textbook example of unfair surprise.”  

“This was avoidable,” Carr noted. “If the FCC wanted to consider rule changes that were not teed up in the Second NPRM, it could have shored up the record through a Further Notice or a supplemental Public Notice.  The FCC did not do so here.  So, while this Order fixes one legal infirmity highlighted at the D.C. Circuit, it creates new problems that may require us to revisit our foreign sponsorship rules in a future proceeding following another appeal.  I approve in part and dissent in part.” 

The Second Report & Order and the statements from the commissioners can be found here.  

WASHINGTON, D.C.—The Federal Communications Commission has adopted a proposal that the agency believes will support local journalism and incentivize the production of local programming by prioritizing the processing and review of applications from broadcast stations that invest in and prioritize local programming in communities across the country.

“We want to ensure our policies support local journalism because it is so vital for our communities and our country.  This creative proposal offers a new way to do just that,” said Chairwoman Jessica Rosenworcel.

The adoption of the Notice of Proposed Rulemaking sets in motion a process of seeking public comment before the FCC votes on the final rules and issues a Final Order. 

Specifically, the FCC said that it “proposes to adopt an application processing policy that, with respect to applications for renewal, transfer, or assignment of a license, would prioritize evaluation of those applications filed by stations that certify that they provide locally originated programming.  These applications would be the first to be reviewed, which would likely result in quicker action and, if the application is granted, quicker approval of these applications.”  

The idea was opposed by commissioner Nathan Simington who complained it was a “wolf in sheep’s clothing” that was really a “collateral attack on the Commission’s elimination of the Main Studio Rule.”

“It purports to serve localism by providing an incentive to broadcasters to create or retain sources of `locally-originated programming.’" he said in a statement. "If broadcasters wish to have their broadcast license applications fast-tracked,—that is, timely processed—and those applications are otherwise encumbered by a hold, petition to deny, or `other processing issue’ (left to the staff’s discretion), then staff will timely act on the application.  While the language of the item suggests that this means that broadcasters with locally-originated programming have a leg up, what it actually means is that any broadcaster who originates news for Market A from a studio in Market B might now have any application—at least for which a `processing issue’ credibly can be discovered or manufactured—slowed.  This is a collateral attack on the Commission’s elimination of the Main Studio Rule, and the item all but says so.”

Simington also noted that “if, as it turns out, local broadcasters with locally-originated programming, per the item’s definition, pour in to thank the Commission for its leadership in correcting a longstanding issue with application processing time, I will happily admit my mistake, eat humble pie at an Open Meeting, and may even vote to approve the final order…Instead, what I think more likely is that broadcasters will come in worried, as I am, about weaponization of application processing, and may even demonstrate by a review of application processing times that this item, unlike a refresh of the vMVPD record, is an answer to a question that no one asked.”

Responding to the proposal, commissioner Brendan Carr noted that the Notice of Proposed Rulemaking was once again raising the issue of the main studio rule. “When I read the item, I was surprised to learn that it did something entirely different and separate from just proposing the prioritization of locally originated programming,” he said in a statement. “It also raised the FCC’s 2017 decision to repeal the main studio rule and determined—even though this is a Notice of Proposed Rulemaking with no evidentiary record before the agency—that this 2017 decision was an error.  Of course, there is no basis for asserting that conclusion here, but more fundamentally there is no reason to get into that rule at all in this Notice.  There are plenty of ways that the FCC can ground its prioritization proposal in the agency’s long-standing and statutorily-grounded commitment to localism.”  

The Notice of Proposed Rulemaking was adopted on January 10 and released on January 17. The date for comments is 30 days after the date of publication in the Federal Register and the Reply Comment Date is 60 days after the date of publication in the Federal Register.

WASHINGTON, D.C.—As part of a wide inquiry into the state of broadband services in the U.S., FCC chair Jessica Rosenworcel has announced that she is proposing a goal of achieving 100% nationwide access to affordable broadband and that the standard for broadband speeds be increased.

The goal is part of an updated Notice of Inquiry that would kick off the agency’s evaluation of the state of broadband across the country, as required by Section 706 of the Telecommunications Act. 

In the Notice of Inquiry that Rosenworcel said she had distributed to colleagues, she proposes that the Commission consider several crucial characteristics of broadband deployment, including affordability, adoption, availability, and equitable access, when determining whether broadband is being deployed in a reasonable and timely fashion to “all Americans,” the FCC said. 

“In today’s world, everyone needs access to affordable, high-speed internet, no exceptions,” said Rosenworcel in a statement. “It’s time to connect everyone, everywhere.  Anything short of 100% is just not good enough.” 

In addition to focusing on a universal service standard, the Notice of Inquiry proposes to increase minimum broadband speeds. Under the proposal the national fixed broadband standard would be increased to 100 megabits per second for download and 20 megabits per second for upload. 

The FCC previously set the broadband standard at 25/3 Mbps in 2015 and has not updated it since. 

The Notice of Inquiry proposes to set a separate national goal of 1 Gbps/500 Mbps for the future.  

WASHINGTON, D.C.— FCC chairwoman Jessica Rosenworcel would like to see much faster broadband speeds and is proposing that minimum broadband speeds be quadrupled to 100Mbps with a longer term goal of 1 Gbps. 

The push for faster minimum broadband speeds is part of a Notice of Inquiry that would kick off the agency’s annual evaluation of the state of broadband across the country.

In a statement, Rosenworcel called the current minimum requirements “harmful” to “low-income neighborhoods and rural communities being left behind and left offline.” 

Rosenworcel also proposed setting a long-term goal for broadband speeds of 1 Gbps for downloads and 500Mbps for uploads. 

The Notice of Inquiry proposes to increase the national broadband standard to 100 megabits per second for download and 20 megabits per second for upload, and discusses a range of evidence supporting this standard, including the requirements for new networks funded by the Infrastructure Investment and Jobs Act.  

The FCC previously set the broadband standard at 25/3 Mbps in 2015 and has not updated it since. 

“The needs of internet users long ago surpassed the FCC’s 25/3 speed metric, especially during a global health pandemic that moved so much of life online,” said chairwoman Rosenworcel.  “The 25/3 metric isn’t just behind the times, it’s a harmful one because it masks the extent to which low-income neighborhoods and rural communities are being left behind and left offline.  That’s why we need to raise the standard for minimum broadband speeds now and while also aiming even higher for the future, because we need to set big goals if we want everyone everywhere to have a fair shot at 21st century success.”

Looking beyond speed, Rosenworcel also proposed that the Commission consider affordability, adoption, availability, and equitable access as part of its determination as to whether broadband is being deployed in a reasonable and timely fashion.  

WASHINGTON—In light of Russia’s attack on the Ukraine last week, FCC Chairwoman Jessica Rosenworcel has proposed action to help protect America’s communications networks against cyberattacks. Earlier in the week, the Department of Homeland Security warned U.S. organizations at all levels that they could face cyber threats stemming from the Russia-Ukraine conflict; the FCC said Chairwoman Rosenworcel’ss proposal would begin an inquiry into the vulnerabilities of the internet’s global routing system.

If adopted by a vote of the full commission, the Notice of Inquiry would seek public comment on vulnerabilities threatening the security and integrity of the Border Gateway Protocol (BGP), which the FCC says is central to the internet’s global routing system. The inquiry would also examine the impact these vulnerabilities would have on the transmission of data through email, e-commerce, bank transactions, interconnected Voice-over Internet Protocol (VoIP), and 911 calls—and how best to address these challenges.

BGP is the routing protocol used to exchange reachability information among independently managed networks on the Internet. BGP’s initial design, which remains widely deployed today, does not include explicit security features to ensure trust in this exchanged information. 

As a result, the FCC said, a bad network actor may deliberately falsify BGP reachability information to redirect traffic. Russian network operators have been suspected of exploiting BGP’s vulnerability to hijacking in the past.  “BGP hijacks” can expose Americans’ personal information, enable theft, extortion, and state-level espionage, and disrupt otherwise-secure transactions.

Working with its federal partners, the commission has urged the communications sector to defend against cyber threats, while also taking measures to reinforce the nation’s readiness and to strengthen the cybersecurity of vital communications services and infrastructure, especially in light of Russia’s actions inside of Ukraine. 

Chairwoman Rosenworcel also recently shared with her colleagues a Notice of Proposed Rulemaking that would begin the process of strengthening the commission’s rules for notifying customers and federal law enforcement of breaches of customer proprietary network information (CPNI). The inquiry under consideration would build on those efforts, the FCC said.

WASHINGTON D.C.—Federal Communications Commission Chairwoman Jessica Rosenworcel has announced a number of key appointments at the agency, with the selection of bureau chiefs for Consumer and Governmental Affairs Bureau, Media Bureau, Public Safety Bureau, Enforcement Bureau and General Counsel. 

As part of the changes, Alejandro Roark will serve as Chief of the Consumer and Governmental Affairs Bureau.  Debra Jordan will now be Chief of the Public Safety and Homeland Security Bureau.  Holly Saurer will now serve as Chief of the Media Bureau.  Loyaan Egal will serve as the Acting Chief of the Enforcement Bureau.  Lastly, Michele Ellison will permanently serve as General Counsel.

“Ensuring modern communications reach every corner of the country isn’t possible without the leadership of incredible, capable experts throughout the Commission,” said Rosenworcel.  “I am confident in the talent at the FCC and honored this team will help lead the Commission.  I look forward to working with them to meet our shared goal of connecting everyone, everywhere.”

Rosenworcel added that “I’d also like to thank Michelle Carey, Lisa Fowlkes, Rosemary Harold, and Patrick Webre, for their public service as they transition to new roles across the agency,”  

Alejandro Roark, who is joining as Chief of the Consumer and Governmental Affairs Bureau, previously served as the Executive Director for HTTP, a CEO Roundtable of national Latino civil rights organizations working in partnership to promote access, adoption, and the full utilization of technology and telecommunications resources by the Latino community across the United States.  Prior to his position with HTTP, Roark led the digital equity and consumer education efforts for LULAC National – including the establishment of the LULAC’s Tech Luncheon and the production of its regional Latino Tech Summit.

Debra Jordan, who will serve as Chief of the Public Safety and Homeland Security Bureau, had previously served as Deputy Chief of the FCC’s Public Safety and Homeland Security Bureau since 2015. Prior to that, Jordan served as a civilian within the Department of Defense where she managed a variety of critical information and communications systems. Her career also includes assignments with responsibility for Navy communications networks and telephony services across the Pacific region.

Holly Saurer, who will serve as the Chief of the Media Bureau, had acted as the Chairwoman’s Legal Advisor, Media for the past year. She returns to the Media Bureau, where she has held several positions, including Deputy Bureau Chief, Associate Bureau Chief, Senior Legal Advisor and Attorney-Advisor with the Media Bureau’s Policy Division.  Saurer has previously served as an Acting Media Advisor for Commissioners Rosenworcel and Clyburn, and an International and Consumer Affairs Legal Advisor for Chairman Wheeler. Prior to joining the Commission, Saurer worked at the Washington, DC offices of Drinker Biddle & Reath and Miller & Van Eaton. She received her JD from American University and graduated from Syracuse University’s Newhouse School of Public Communication.

Loyaan Egal, who will lead the Commission’s Enforcement Bureau as Acting Chief, had most recently, served as a Deputy Chief in the Foreign Investment Review Section (FIRS) of the U.S. Department of Justice’s National Security Division. He previously served in the FCC’s Enforcement Bureau, where he established and led the Universal Service Fund Strike Force (now known as the Fraud Division), the FCC’s first white collar fraud unit.  Prior to that, he was an Assistant United States Attorney in the Southern District of New York and the District of Columbia, where he investigated and prosecuted cases involving public corruption, official bribery, the Foreign Corrupt Practices Act (FCPA), campaign finance fraud, bank, mail, wire, and tax fraud, international narcotics trafficking, and money laundering.  Egal clerked for the Honorable Alia Moses, U.S. District Judge for the Western District of Texas.  He received his undergraduate degree from St. John’s University and earned his law degree at the Howard University School of Law.

Michele Ellison had been Acting General Counsel prior to being appointed to permanently serve as General Counsel.  Over the last year, Ellison has served with distinction as the agency’s chief legal officer and advised on some of thorniest legal and policy issues before the Commission – ranging from 5G and universal service to broadband data and national security.  She previously served as Deputy General Counsel, a position she held for most of her 25-year tenure at the FCC.  In addition, she has the distinction of being the first woman of color to hold positions as the agency’s Chief of Staff, Chief of the Enforcement Bureau, and with today’s announcement, General Counsel.  

Before joining the Commission, Ellison was a Partner, and earlier an associate, at Williams and Connolly.  She clerked for the Honorable Damon J. Keith of the United States Court of Appeals for the Sixth Circuit and for the Honorable Paul R. Webber, III of the Superior Court of the District of Columbia. Ellison received her J.D., cum laude from Howard University School of Law, and her B.A. from Duke University.

WASHINGTON, D.C.—The Senate has voted to confirm Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel to another term at the Commission, a move that will make her the first female non-acting chair to head the agency. 

The vote was 68 in favor and 31 opposed and came after the Senate voted yesterday, December 7, to move the nomination to a full vote. 

In response to the confirmation, National Association of Broadcasters (NAB) president and CEO Gordon Smith said in a statement that the “NAB congratulates FCC Chairwoman Jessica Rosenworcel on her confirmation to another five-year term at the Commission and her historic appointment as chair. She is a dedicated public servant who has demonstrated effective leadership and expertise on telecommunications issues during her tenure at the FCC. We look forward to continuing to work with her and her fellow commissioners on ensuring a vibrant future for free and local broadcasting.”

TV Tech will post other reactions to the historic confirmation as they become available.