FCC

FCC urges courts to ignore 5th Circuit ruling that agency can’t issue fines

5th circuit, FCC, Policy / Kris Guyer / April 30, 2025

FCC fights the 5th Circuit

One court said FCC violated right to trial, but other courts haven’t ruled yet.

Credit: Getty Images | AaronP/Bauer-Griffin

The Federal Communications Commission is urging two federal appeals courts to disregard a 5th Circuit ruling that guts the agency’s ability to issue financial penalties.

On April 17, the US Court of Appeals for the 5th Circuit granted an AT&T request to wipe out a $57 million fine for selling customer location data without consent. The conservative 5th Circuit court said the FCC “acted as prosecutor, jury, and judge,” violating AT&T’s Seventh Amendment right to a jury trial.

The ruling wasn’t a major surprise. The 5th Circuit said it was guided by the Supreme Court’s June 2024 ruling in Securities and Exchange Commission v. Jarkesy, which held that “when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.” After the Supreme Court’s Jarkesy ruling, FCC Republican Nathan Simington vowed to vote against any fine imposed by the commission until its legal powers are clear.

Before becoming the FCC chairman, Brendan Carr voted against the fine issued to AT&T and fines for similar privacy violations simultaneously levied against T-Mobile and Verizon. Carr repeatedly opposed Biden-era efforts to regulate telecom providers and is aiming to eliminate many of the FCC’s rules now that he is in charge. But Carr has also been aggressive in regulation of media, and he doesn’t want the FCC’s ability to issue penalties completely wiped out. The Carr FCC stated its position in new briefs submitted in separate lawsuits filed by T-Mobile and Verizon.

Verizon sued the FCC in the 2nd Circuit in an attempt to overturn its privacy fine, while T-Mobile and subsidiary Sprint sued in the District of Columbia Circuit. Verizon and T-Mobile reacted to the 5th Circuit ruling by urging the other courts to rule the same way, prompting responses from the FCC last week.

“The Fifth Circuit concluded that the FCC’s enforcement proceeding leading to a monetary forfeiture order violated AT&T’s Seventh Amendment rights. This Court shouldn’t follow that decision,” the FCC told the 2nd Circuit last week.

FCC loss has wide implications

Carr’s FCC argued that the agency’s “monetary forfeiture order proceedings pose no Seventh Amendment problem because Section 504(a) [of the Communications Act] affords carriers the opportunity to demand a de novo jury trial in federal district court before the government can recover any penalty. Verizon elected to forgo that opportunity and instead sought direct appellate review.” The FCC put forth the same argument in the T-Mobile case with a filing in the District of Columbia Circuit.

There would be a circuit split if either the 2nd Circuit or DC Circuit appeals court rules in the FCC’s favor, increasing the chances that the Supreme Court will take up the case and rule directly on the FCC’s enforcement authority.

Beyond punishing telecom carriers for privacy violations, an FCC loss could prevent the commission from fining robocallers. When Carr’s FCC proposed a $4.5 million fine for an allegedly illegal robocall scheme in February, Simington repeated his objection to the FCC issuing fines of any type.

“While the conduct described in this NAL [Notice of Apparent Liability for Forfeiture] is particularly egregious and certainly worth enforcement action, I continue to believe that the Supreme Court’s decision in Jarkesy prevents me from voting, at this time, to approve this or any item purporting to impose a fine,” Simington said at the time.

5th Circuit reasoning

The 5th Circuit ruling against the FCC was issued by a panel of three judges appointed by Republican presidents. “Our analysis is governed by SEC v. Jarkesy. In that case, the Supreme Court ruled that the Seventh Amendment prohibited the SEC from requiring respondents to defend themselves before an agency, rather than a jury, against civil penalties for alleged securities fraud,” the appeals court said.

The penalty issued by the FCC is not “remedial,” the court said. The fine was punitive and not simply “meant to compensate victims whose location data was compromised. So, like the penalties in Jarkesy, the civil penalties here are ‘a type of remedy at common law that could only be enforced in courts of law.'”

The FCC argued that its enforcement proceeding fell under the “public rights” exception, unlike the private rights that must be adjudicated in court. “The Commission argues its enforcement action falls within the public rights exception because it involves common carriers,” the 5th Circuit panel said. “Given that common carriers like AT&T are ‘affected with a public interest,’ the Commission contends Congress could assign adjudication of civil penalties against them to agencies instead of courts.”

The panel disagreed, saying that “the Commission’s proposal would blow a hole in what is meant to be a narrow exception to Article III” and “empower Congress to bypass Article III adjudication in countless matters.” The panel acknowledged that “federal agencies like the Commission have long had regulatory authority over common carriers, such as when setting rates or granting licenses,” but said this doesn’t mean that “any regulatory action concerning common carriers implicates the public rights exception.”

FCC hopes lie with other courts

The 5th Circuit panel also rejected the FCC’s contention that carriers are afforded the right to a trial after the FCC enforcement proceeding. The 5th Circuit said this applies only when a carrier fails to pay a penalty and is sued by the Department of Justice. “To begin with, by the time DOJ sues (if it does), the Commission would have already adjudged a carrier guilty of violating section 222 and levied fines… in this process, which was completely in-house, the Commission acted as prosecutor, jury, and judge,” the panel said.

An entity penalized by the FCC can also ask a court of appeals to overturn the fine, as AT&T did here. But in choosing this path, the company “forgoes a jury trial,” the 5th Circuit panel said.

While Verizon and T-Mobile hope the other appeals courts will rule the same way, the FCC maintains that the 5th Circuit got it wrong. In its filing to the 2nd Circuit, the FCC challenged the 5th Circuit’s view on whether a trial after the FCC issues a fine satisfies the right to a jury trial. Pointing to an 1899 Supreme Court ruling, the FCC said that “an initial tribunal can lawfully enter judgment without a full jury trial if the law permits a subsequent ‘trial [anew] by jury, at the request of either party, in the appellate court.'”

The FCC further said the 5th Circuit relied on a precedent that doesn’t exist in either the 2nd Circuit or District of Columbia Circuit.

“The Fifth Circuit also relied on circuit precedent holding that ‘[i]n a section 504 trial, a defendant cannot challenge a forfeiture order’s legal conclusions,'” the FCC also said. “This Court, however, has never adopted such a limitation, and the Fifth Circuit’s premise is in doubt. Regardless, the proper approach would be to challenge any such limitation in the trial court and seek to strike the limitation—not to vacate the forfeiture order.”

Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.

FCC urges courts to ignore 5th Circuit ruling that agency can’t issue fines Read More »

FCC Democrat slams chairman for aiding Trump’s “campaign of censorship”

FCC, fcc news distortion, First Amendment, Policy / Kris Guyer / April 24, 2025

The first event is scheduled for Thursday and will be hosted by the Center for Democracy and Technology. The events will be open to the public and livestreamed when possible, and feature various speakers on free speech, media, and telecommunications issues.

With Democrat Geoffrey Starks planning to leave the commission soon, Republicans will gain a 2–1 majority, and Gomez is set to be the only Democrat on the FCC for at least a while. Carr is meanwhile pursuing news distortion investigations into CBS and ABC, and he has threatened Comcast with a similar probe into its subsidiary NBC.

Gomez’s press release criticized Carr for these and other actions. “From investigating broadcasters for editorial decisions in their newsrooms, to harassing private companies for their fair hiring practices, to threatening tech companies that respond to consumer demand for fact-checking tools, the FCC’s actions have focused on weaponizing the agency’s authority to silence critics,” Gomez’s office said.

Gomez previously criticized Carr for reviving news distortion complaints that were dismissed shortly before Trump’s inauguration. “We cannot allow our licensing authority to be weaponized to curtail freedom of the press,” she said at the time.

FCC Democrat slams chairman for aiding Trump’s “campaign of censorship” Read More »

FCC chairman Brendan Carr starts granting telecom lobby’s wish list

brendan carr, FCC, Policy / Rejus Almole / March 21, 2025

In July 2024, AT&T became the first carrier to apply for a technology transition discontinuance “under the Adequate Replacement Test relying on the applicant’s own replacement service,” the order said. “AT&T indicated in this application that it was relying on a totality of the circumstances showing to establish the adequacy of its replacement service, but also committed to the performance testing methodology and parameters established in the 2016 Technology Transitions Order Technical Appendix.” This “delay[ed] the filing of its discontinuance application for several months,” the FCC said.

Harold Feld, senior VP of consumer advocacy group Public Knowledge, said the FCC clarification that carriers don’t need to perform testing, “combined with elimination of most of the remaining notice requirements, means that you don’t have to worry about actually proving anything. Just say ‘totality of the circumstances’ and by the time anyone who cares finds out, the application will be granted.”

“The one positive thing is that some states (such as California) still have carrier of last resort rules to protect consumers,” Feld told Ars. “In some states, at least, consumers will not suddenly find themselves cut off from 911 or other important services.”

Telco lobby loves FCC moves

The bureau separately approved a petition for a waiver filed last month by USTelecom, a lobby group that represents telcos such as AT&T, Verizon, and CenturyLink (aka Lumen). The group sought a waiver of a requirement that replacement voice services be offered on a stand-alone basis instead of only in a bundle with broadband.

While bundles cost more than single services for consumers who only want phone access, USTelecom said that “inefficiencies of offering stand-alone voice can raise costs for consumers and reduce capital available for investment and innovation.”

The FCC said granting the waiver will allow providers “to retire copper networks, not only in cases where replacement voice services are available on a stand-alone basis, but in cases where those services are available on a bundled basis.” The waiver is approved for two years and can be extended.

USTelecom President and CEO Jonathan Spalter praised the FCC actions in a statement. “Broadband providers appreciate Chairman Carr’s laser focus on cutting through red tape and outdated mindsets to accelerate the work of connecting all Americans,” Spalter said.

Just like Carr’s statement, Spalter did not use the word “fiber” when discussing replacements for copper service. He said vaguely that “today’s decision marks a significant step forward in transitioning outdated copper telephone lines to next-generation networks that better meet the needs of American consumers,” and “will help turbocharge investment in advanced broadband infrastructure, sustain and grow a skilled broadband workforce, bring countless new choices and services to more families and communities, and fuel our innovation economy.”

FCC chairman Brendan Carr starts granting telecom lobby’s wish list Read More »

Furious at the FCC, Arkansas jail cancels inmate phone calls rather than lower rates

FCC, jail, phone calls, Policy / Mike M. / March 19, 2025

If “the Federal Communications Commission reverses their adverse regulations,” Montgomery said, “the Baxter County Sheriff’s Office will revisit the feasibility of reimplementing the inmate phone system.”

One might expect this view to generate some sympathy in the MAGA-fied halls of FCC HQ. But the Commission’s two Republicans actually voted in favor of the rate control order last year. Current FCC Chair Brendan Carr even agreed that inmate phone calls in American prisons were often “excessive” and that the private operators behind these systems represented a “market failure.” He then voted for straight-up, old-school price caps.

In fact, Carr went on to offer a robust defense of inmate calling, saying: “[I often] heard from families who experienced firsthand the difficulties of maintaining contact with their incarcerated loved ones. I also heard from formerly incarcerated individuals who underscored the decline in mental and emotional health that can result from a lack of external communications. Beyond that, studies have repeatedly shown that increased communication between incarcerated people and their families, friends, and other outside resources helps reduce recidivism rates.”

So Montgomery may not get this decision reversed easily. (On the other hand, Carr did just launch a “Delete! Delete! Delete!” initiative focused on cutting regulations, so who knows.)

Baxter County claims that the FCC decision means that phone services are no longer “feasible.” In 2018, however, when Baxter County wanted to expand its jail and didn’t have the cash, officials found a way to make it feasible by asking voters to approve a 1-cent sales tax collected between April and September of that year. (You can even watch a time-lapse video of the jail expansion being built.) Feasibility, it turns out, is often in the eye of the beholder.

Montgomery did say that he would add some additional in-person visiting hours at the jail to compensate for the lack of phone calls, and last week his office posted the new schedule. But as positive as in-person contact can be, in a busy world it is still nice to have the option of a reasonably priced phone call—you know, the kind that’s “feasible” to offer at most other jails in the US.

Furious at the FCC, Arkansas jail cancels inmate phone calls rather than lower rates Read More »

Commercials are still too loud, say “thousands” of recent FCC complaints

ads, FCC, Policy, streaming, Tech / Tim Belzer / March 1, 2025

Streaming ads could get muzzled, too

As you may have noticed—either through the text of this article or your own ears—The Calm Act doesn’t apply to streaming services. And because The Calm Act doesn’t affect commercials viewed on the Internet, online services providing access to broadcast channels, like YouTube TV and Sling, don’t have to follow the rules. This is despite such services distributing the same content as linear TV providers.

For years, this made sense. The majority of TV viewing occurred through broadcast, cable, or satellite access. Further, services like Netflix and Amazon Prime Video used to be considered safe havens from constant advertisements. But today, streaming services are more popular than ever and have grown to love ads, which have become critical to most platforms’ business models. Further, many streaming services are airing more live events. These events, like sports games, show commercials to all subscribers, even those with a so-called “ad-free” subscription.

Separate from the Calm Act violation complaints, the FCC noted this month that other recent complaints it has seen illustrate “growing concern with the loudness of commercials on streaming services and other online platforms.” If the FCC decides to apply Calm Act rules to the web, it would need to create new methods for ensuring compliance, it said.

TV viewing trends by platform bar graph by Nielsen. — Nielsen’s most recent data on how people watch TV. Credit: Nielsen

The FCC didn’t specify what’s behind the spike in consumers’ commercial complaints. Perhaps with declining audiences, traditional TV providers thought it would be less likely for anyone to notice and formally complain about Ozempic ads shouting at them. Twelve years have passed since the rules took effect, so it’s also possible that organizations are getting lackadaisical about ensuring compliance or have dwindling resources.

With Americans spending similar amounts of time—if not longer—watching TV online versus via broadcast, cable, and satellite, The Calm Act would have to take on the web in order to maximize effectiveness. The streaming industry is young, though, and operates differently than linear TV distribution, presenting new regulation challenges.

Commercials are still too loud, say “thousands” of recent FCC complaints Read More »

DeepSeek is “TikTok on steroids,” senator warns amid push for government-wide ban

AI, app ban, CCP, china, china mobile, Chinese Communist Party, DeepSeek, FCC, government ban, Policy / Kris Guyer / February 6, 2025

But while the national security concerns require a solution, Curtis said his priority is maintaining “a really productive relationship with China.” He pushed Lutnick to address how he plans to hold DeepSeek—and the CCP in general—accountable for national security concerns amid ongoing tensions with China.

Lutnick suggested that if he is confirmed (which appears likely), he will pursue a policy of “reciprocity,” where China can “expect to be treated by” the US exactly how China treats the US. Currently, China is treating the US “horribly,” Lutnick said, and his “first step” as Commerce Secretary will be to “repeat endlessly” that more “reciprocity” is expected from China.

But while Lutnick answered Curtis’ questions about DeepSeek somewhat head-on, he did not have time to respond to Curtis’ inquiry about Lutnick’s intentions for the US AI Safety Institute (AISI)—which Lutnick’s department would oversee and which could be essential to the US staying ahead of China in AI development.

Viewing AISI as key to US global leadership in AI, Curtis offered “tools” to help Lutnick give the AISI “new legs” or a “new life” to ensure that the US remains responsibly ahead of China in the AI race. But Curtis ran out of time to press Lutnick for a response.

It remains unclear how AISI’s work might change under Trump, who revoked Joe Biden’s AI safety rules establishing the AISI.

What is clear is that lawmakers are being pressed to preserve and even evolve the AISI.

Yesterday, the chief economist for a nonprofit called the Foundation for the American Innovation, Samuel Hammond, provided written testimony to the US House Science, Space, and Technology Committee, recommending that AISI be “retooled to perform voluntary audits of AI models—both open and closed—to certify their security and reliability” and to keep America at the forefront of AI development.

“With so little separating China and America’s frontier AI capabilities on a technical level, America’s lead in AI is only as strong as our lead in computing infrastructure,” Hammond said. And “as the founding member of a consortium of 280 similar AI institutes internationally, the AISI seal of approval would thus support the export and diffusion of American AI models worldwide.”

DeepSeek is “TikTok on steroids,” senator warns amid push for government-wide ban Read More »

Robocallers posing as FCC staff blocked after robocalling real FCC staff

FCC, Policy, robocalls / Kris Guyer / February 5, 2025

A not-very-successful robocall scheme

You can ignore robocalls from FCC “Fraud Prevention Team,” which doesn’t exist.

Credit: Getty Images | PhonlamaiPhoto

Robocallers posing as employees of the Federal Communications Commission made the mistake of trying to scam real employees of the FCC, the FCC announced yesterday. “On the night of February 6, 2024, and continuing into the morning of February 7, 2024, over a dozen FCC staff and some of their family members reported receiving calls on their personal and work telephone numbers,” the FCC said.

The calls used an artificial voice that said, “Hello [first name of recipient] you are receiving an automated call from the Federal Communications Commission notifying you the Fraud Prevention Team would like to speak with you. If you are available to speak now please press one. If you prefer to schedule a call back please press two.”

You may not be surprised to learn that the FCC does not have any “Fraud Prevention Team” like the one mentioned in the robocalls, and especially not one that demands Google gift cards in lieu of jail time.

“The FCC’s Enforcement Bureau believes the purpose of the calls was to threaten, intimidate, and defraud,” the agency said. “One recipient of an imposter call reported that they were ultimately connected to someone who ‘demand[ed] that [they] pay the FCC $1,000 in Google gift cards to avoid jail time for [their] crimes against the state.'”

The FCC said it does not “publish or otherwise share staff personal phone numbers” and that it “remains unclear how these individuals were targeted.” Obviously, robocallers posing as FCC employees probably wouldn’t intentionally place scam calls to real FCC employees. But FCC employees are just as likely to get robocalls as anyone else. This set of schemers apparently only made about 1,800 calls before their calling accounts were terminated.

The FCC described the scheme yesterday when it announced a proposed fine of $4,492,500 against Telnyx, the voice service provider accused of carrying the robocalls. The FCC alleges that Telnyx violated “Know Your Customer (KYC)” rules by providing access to calling services without verifying the customers’ identities. When contacted by Ars today, Telnyx denied the FCC’s allegations and said it will contest the proposed fine.

The “MarioCop” accounts

The robocalling scheme lasted two days. On February 6, 2024, Telnyx accepted two new customers calling themselves Christian Mitchell and Henry Walker, who provided street addresses in Toronto and email addresses with the domain name “mariocop123.com.” The robocallers apparently used fake identities and paid for Telnyx service in Bitcoin.

The Telnyx customers who placed the robocalls are referred to as “MarioCop accounts” in the FCC’s Notice of Apparent Liability for Forfeiture (NAL) issued against Telnyx. Telnyx flagged one of the accounts in the course of its “routine examination of new users” and terminated the account on February 7 after determining the calls violated its terms and conditions and acceptable use policy. Telnyx also reported the account to the FCC.

Telnyx is based in Chicago. It offers a service that lets callers “build a custom AI voice bot” and a voice API that “makes it simple to make, receive and control voice calls with code.” Telnyx is also a VoIP provider that says it “holds carrier status in 30+ countries around the world” and offers “local calling in over 80 countries and PSTN [Public Switched Telephone Network] replacement in 45+ markets.”

The FCC subpoenaed Telnyx for information about the calls, and the resulting records showed that one MarioCop account placed 1,029 calls between February 6 and February 7. The other account placed 768 calls on February 6.

The FCC also subpoenaed Telnyx for information that might identify the callers and “determined that the very limited identifying information Telnyx collected from its customers was false.” They used physical addresses in Canada, including one that turned out to be a Sheraton hotel, and IP addresses from Scotland and England.

“The @mariocop123.com domain is not associated with any known business; a website using the same domain was created in February 2024 and remains undeveloped,” the FCC said. The FCC notes that both MarioCop accounts may have been operated by the same person.

FCC: Telcos must know their customers

Telnyx “accepted the names and physical addresses at face value, without any further requests for corroboration or independent verification,” the FCC forfeiture order said. Neither applicant provided a telephone number.

The FCC alleged that Telnyx didn’t do enough “to discern whether the limited amount of identifying information its customer provided was legitimate and it overlooked obvious discrepancies in the information it collected… Becoming Telynyx’s customer and gaining access to outbound calling services that allowed origination of hundreds of calls (more than 1,000 calls from the First MarioCop Account) was as simple as making up a fake name and address and acquiring a non-free email address.”

The FCC notice continued:

Our rules require Telnyx to know its customers. Yet it did not know who the MarioCop Account holders were. We therefore conclude that Telnyx apparently violated section 64.1200(n)(4) of our rules by allowing the First MarioCop Account and the Second MarioCop Account access to outbound calling services without actually knowing the true identities of the account holders. By extension, we believe we could likely find that Telnyx apparently violated our rules with regards to every customer it onboarded using the same process as it did for the MarioCop Accounts. We decline to do so here absent further investigation.

Telnyx will have an opportunity to respond to the allegations and argue that it shouldn’t be fined. In some cases, the FCC and the telecom reach a settlement for a lower amount.

Telnyx CEO David Casem told Ars today that “Telnyx is surprised by the FCC’s mistaken decision to issue a Notice of Apparent Liability stating an intent to impose monetary penalties. The Notice of Apparent Liability is factually mistaken, and Telnyx denies its allegations. Telnyx has done everything and more than the FCC has required for Know-Your-Customer (‘KYC’) and customer due diligence procedures.”

We also sent a message to the email addresses used by the MarioCop accounts and will update this article in the unlikely event that we receive a response.

Telnyx defends response, citing quick shutdown

Casem said the FCC hasn’t previously demanded “perfection” in stopping illegal traffic. “Since bad actors continuously find ways to avoid detection, the FCC has historically expected providers to take reasonable steps to detect and block them,” he told Ars. “Yet the FCC now seeks to impose substantial monetary penalties on Telnyx for limited unlawful calling activity that Telnyx not only did not originate but swiftly blocked within a matter of hours.”

Casem said that “there has been no allegation of subsequent recurring activity” and urged the FCC to “reconsider what can only be viewed as an improper effort to impose an unprecedented zero-tolerance requirement on providers through enforcement action, in the absence of any defined rules informing providers what is expected of them.”

FCC Chairman Brendan Carr said in yesterday’s announcement that he is pleased with the “bipartisan vote in favor of this nearly $4.5 million proposed fine” and that it “continues the FCC’s longstanding work to stop bad actors.”

Anna Gomez, a Democratic member of the FCC, said that Carr’s office accepted her request for a change designed to encourage telecoms to report potential violations to the FCC. “It is important that service providers work quickly and closely with the FCC to identify and stop illegal traffic before it makes its way to consumers. I value self-reporting from industry actors on potential violations of our rules, and I am grateful the Office of Chairman Carr accepted our edits to this NAL to encourage self-reporting,” Gomez said.

There was a dissenting vote from Republican Commissioner Nathan Simington, but not because of the facts specific to this case. Because of a recent Supreme Court ruling limiting the power of federal agencies, Simington has vowed to vote against any fine imposed by the commission until its legal powers are clear.

“While the conduct described in this NAL is particularly egregious and certainly worth enforcement action, I continue to believe that the Supreme Court’s decision in Jarkesy prevents me from voting, at this time, to approve this or any item purporting to impose a fine,” Simington said.

Robocallers posing as FCC staff blocked after robocalling real FCC staff Read More »

FCC chair makes one last stand against Trump’s call to punish news stations

brendan carr, Donald Trump, FCC, jessica rosenworcel, Policy / Paul Patrick / January 16, 2025

FCC not the president’s speech police (yet)

Chair: Complaints “seek to weaponize the licensing authority of the FCC.”

FCC Chairwoman Jessica Rosenworcel testifies during a House hearing on Thursday, May 16, 2024. Credit: Getty Images | Tom Williams

Taking action in the final days of the Biden administration, the Federal Communications Commission dismissed three complaints and a petition filed against broadcast television stations. FCC Chairwoman Jessica Rosenworcel said the action is important because “the incoming President has called on the Federal Communications Commission to revoke licenses for broadcast television stations because he disagrees with their content and coverage.”

“Today, I have directed the FCC to take a stand on behalf of the First Amendment,” she said. “We draw a bright line at a moment when clarity about government interference with the free press is needed more than ever. The action we take makes clear two things. First, the FCC should not be the president’s speech police. Second, the FCC should not be journalism’s censor-in-chief.”

President-elect Donald Trump’s chosen replacement for Rosenworcel, Commissioner Brendan Carr, wants the FCC to punish news broadcasters that he perceives as being unfair to Trump or Republicans in general. Backing Trump’s various complaints about news stations, Carr has threatened to revoke licenses by wielding the FCC’s authority to ensure that broadcasters using public airwaves operate in the public interest.

Rosenworcel said the complaints and petition she is dismissing “come from all corners—right and left—but what they have in common is they ask the FCC to penalize broadcast television stations because they dislike station behavior, content, or coverage.” After Trump criticized CBS in October, Rosenworcel said the agency “does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”

Chair: Complaints aim to “weaponize” FCC authority

The Center for American Rights filed complaints supporting Trump’s claims of bias regarding ABC’s fact-checking during a presidential debate, the editing of a CBS 60 Minutes interview with Kamala Harris, and NBC putting Harris on a Saturday Night Live episode. Separately, the Media and Democracy Project filed a petition to deny a license renewal for WTXF-TV in Philadelphia, a station owned and operated by Fox, alleging that Fox willfully distorted news with false reports of fraud in the 2020 election that Trump lost.

Rejecting all four, Rosenworcel said “the facts and legal circumstances in each of these cases are different. But what they share is that they seek to weaponize the licensing authority of the FCC in a way that is fundamentally at odds with the First Amendment. To do so would set a dangerous precedent. That is why we reject it here.”

Dismissing complaints isn’t likely to end the cases, said Jeffrey Westling, a lawyer at the conservative American Action Forum who has urged Congress to “limit or revoke the FCC’s authority to impose content-based restrictions on broadcast television.”

Westling said he agrees “substantively” with Rosenworcel, but added that “the DC Circuit Court has made clear that the FCC has to consider news distortion complaints (see Serafyn vs FCC) and not just dismiss them outright. If I am the complainants, I challenge these dismissals in court, win, and get more attention.”

When contacted by Ars today, the Center for American Rights provided a statement criticizing Rosenworcel’s decision as “political and self-serving.”

“We fundamentally believe that several actions taken by the three major networks were partisan, dishonest and designed to support Vice President Harris in her bid to become President,” the group said. “We will continue to pursue avenues to ensure the American public is protected from media manipulation of our Republic. The First Amendment does not protect intentional misrepresentation or fraud.”

The group previously touted the fact that Republican FCC Commissioner Nathan Simington urged FCC leadership to take its complaints seriously.

Fox ruling will be challenged

The Media and Democracy Project criticized Rosenworcel’s decision to dismiss its complaint against the Fox station in Philadelphia.

“We look forward to presenting on appeal the multiple court decisions that raise serious questions about the Murdochs’ and Fox’s character qualifications to remain broadcast licensees,” the Media and Democracy Project said in a statement provided to Ars. “As renowned First Amendment scholar Floyd Abrams stated in his filing with the Commission, the First Amendment is no bar to Commission action given the facts of this case. Our petition is clearly distinct from the other politically motivated complaints.”

The group’s petition pointed to a court ruling that found Fox News aired false statements about Dominion Voting Systems. Fox later agreed to pay Dominion $788 million to settle a defamation lawsuit.

“Our Petition to Deny is based on judicial findings that Fox made repeated false statements that undermined the electoral process and resulted in property damage, injury, and death; that Rupert and Lachlan Murdoch engaged in a ‘carefully crafted scheme’ in ‘bad faith’ to deprive Lachlan’s siblings of the control to which they are entitled under an irrevocable trust; and that ‘Murdoch knowingly caused the corporation to violate the law,'” the Media and Democracy Project said today.

The FCC order denying the petition also granted the station’s application for a license renewal. The order said the allegations regarding “material carried on a cable network under common control with the Licensee that a state court found to be false” aren’t grounds to deny the individual station’s license renewal. While some “non-FCC-related misconduct” can be considered by the FCC in an evaluation of a licensee’s character, the finding in the defamation suit doesn’t qualify, the order said.

Former FCC official objects

Gigi Sohn, a longtime advocate whose nomination to the FCC was rejected by the Senate, also criticized the FCC today. Sohn, who also served as counselor for FCC Chairman Tom Wheeler during the Obama administration, called the dismissal of the Fox petition a “failure to lead.”

“As [Rosenworcel] herself points out, the facts of these petitions are very different,” Sohn wrote. “The [Media and Democracy Project] petition seeks a hearing on Fox Philadelphia licenses because they allege that Fox lacks the character to hold them because it lied to the American people about the 2020 election. The conservative complaints are all based on disagreements with editorial judgments of the various broadcast networks.”

“The decision to lump these filings together and overturn years of FCC precedent that broadcasters’ character is central to holding a license is contrary to the Communications Act’s mandate that licenses be granted in ‘the public interest, convenience and necessity,'” Sohn also wrote. The FCC rationale would mean that “anything and everything a broadcast licensee does or says would be a First Amendment issue that warrants automatic license renewal,” she added.

Media advocacy group Free Press agreed with the FCC’s decision. “We have an incoming administration quite literally threatening to jail journalists for doing their jobs, and an incoming FCC chairman talking about revoking broadcast licenses any time he disagrees with their political coverage,” the group said.

Free Press sided with the FCC despite noting that the Fox case involved “false information [that] had devastating consequences in the January 6 attack on the peaceful transition of power four years ago.”

“Lies knowingly aired by Fox News Channel and some Murdoch-owned Fox affiliates present a significantly different challenge to regulators than merely fact-checking, editing or scheduling equal time for candidates in ways that displease the president-elect,” Free Press said. “Yet we agree with the urgent need to prevent the weaponization of the government against journalists and media companies on the eve of the inauguration, and in light of the dire threats the new administration poses.”

FCC chair makes one last stand against Trump’s call to punish news stations Read More »

Appeals court blocks FCC’s efforts to bring back net neutrality rules

brendan carr, broadband providers, Donald Trump, FCC, Joe Biden, Net Neutrality, open Internet, Policy / Mike M. / January 2, 2025

“The key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more,” Griffin wrote, concluding that “they do.”

“The FCC exceeded its statutory authority,” Griffin wrote, at one point accusing the FCC of arguing for a reading of the statute “that is too sweeping.”

The three-judge panel ordered a stay of the FCC’s order imposing net neutrality rules—known as the Safeguarding and Securing the Open Internet Order.

In a statement, FCC chair Jessica Rosenworcel suggested that Congress would likely be the only path to safeguard net neutrality moving forward. In the federal register, experts noted that net neutrality is critical to boosting new applications, services, or content, warning that without clear rules, the next Amazon or YouTube could be throttled before it can get off the ground.

“Consumers across the country have told us again and again that they want an Internet that is fast, open, and fair,” Rosenworcel said. “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.”

Rosenworcel will soon leave the FCC and will be replaced by Trump’s incoming FCC chair pick, Brendan Carr, who helped overturn net neutrality in 2017 and is expected to loosen broadband regulations once he’s confirmed.

Appeals court blocks FCC’s efforts to bring back net neutrality rules Read More »

Cable companies and Trump’s FCC chair agree: Data caps are good for you

data caps, FCC, Policy / Kris Guyer / November 19, 2024

Many Internet users filed comments asking the FCC to ban data caps. A coalition of consumer advocacy groups filed comments saying that “data caps are another profit-driving tool for ISPs at the expense of consumers and the public interest.”

“Data caps have a negative impact on all consumers but the effects are felt most acutely in low-income households,” stated comments filed by Public Knowledge, the Open Technology Institute at New America, the Benton Institute for Broadband & Society, and the National Consumer Law Center.

Consumer groups: Caps don’t manage congestion

The consumer groups said the COVID-19 pandemic “made it more apparent how data caps are artificially imposed restrictions that negatively impact consumers, discriminate against the use of certain high-data services, and are not necessary to address network congestion, which is generally not present on home broadband networks.”

“Unlike speed tiers, data caps do not effectively manage network congestion or peak usage times, because they do not influence real-time network load,” the groups also said. “Instead, they enable further price discrimination by pushing consumers toward more expensive plans with higher or unlimited data allowances. They are price discrimination dressed up as network management.”

Jessica Rosenworcel, who has been FCC chairwoman since 2021, argued last month that consumer complaints show the FCC inquiry is necessary. “The mental toll of constantly thinking about how much you use a service that is essential for modern life is real as is the frustration of so many consumers who tell us they believe these caps are costly and unfair,” Rosenworcel said.

ISPs lifting caps during the pandemic “suggest[s] that our networks have the capacity to meet consumer demand without these restrictions,” she said, adding that “some providers do not have them at all” and “others lifted them in network merger conditions.”

Cable companies and Trump’s FCC chair agree: Data caps are good for you Read More »

Trump’s FCC chair is Brendan Carr, who wants to regulate everyone except ISPs

brendan carr, Donald Trump, FCC, fcc chairman, Policy / Mike M. / November 18, 2024

Trump makes FCC chair pick

Carr says he wants to punish broadcast media and dismantle “censorship cartel.”

Federal Communications Commission member Brendan Carr speaks during the 2024 Conservative Political Action Conference (CPAC) in National Harbor, Maryland on February 24, 2024. Credit: Getty Images | Anadolu

President-elect Donald Trump announced last night that he will make Brendan Carr the chairman of the Federal Communications Commission. Carr, who wrote a chapter about the FCC for the conservative Heritage Foundation’s Project 2025, is a longtime opponent of net neutrality rules and other regulations imposed on Internet service providers.

Although Carr wants to deregulate telecom companies that the FCC has historically regulated, he wants the FCC to start regulating Big Tech and social media firms. He has also echoed Trump’s longtime complaints about the news media and proposed punishments for broadcast networks.

Trump’s statement on Carr said that “because of his great work, I will now be designating him as permanent Chairman.”

“Commissioner Carr is a warrior for Free Speech, and has fought against the regulatory Lawfare that has stifled Americans’ Freedoms, and held back our Economy,” Trump wrote. “He will end the regulatory onslaught that has been crippling America’s Job Creators and Innovators, and ensure that the FCC delivers for rural America.”

Carr is a sitting FCC commissioner and therefore no Senate approval is needed to confirm the choice. The president can elevate any commissioner to the chair spot.

Carr wants to punish broadcasters

Carr thanked Trump in a post on his X account last night, then made several more posts describing some of the changes he plans to make at the FCC. One of Carr’s posts said the FCC will crack down on broadcast media.

“Broadcast media have had the privilege of using a scarce and valuable public resource—our airwaves. In turn, they are required by law to operate in the public interest. When the transition is complete, the FCC will enforce this public interest obligation,” Carr wrote.

We described Carr’s views on how the FCC should operate in an article on November 7, just after Trump’s election win. We wrote:

A Carr-led FCC could also try to punish news organizations that are perceived to be anti-Trump. Just before the election, Carr alleged that NBC putting Kamala Harris on Saturday Night Live was “a clear and blatant effort to evade the FCC’s Equal Time rule” and that the FCC should consider issuing penalties. Despite Carr’s claim, NBC did provide equal time to the Trump campaign.

Previous chairs defended free speech

Previous FCC chairs from both major parties have avoided punishing news organizations because of free speech concerns. Democrat Jessica Rosenworcel, the current FCC chairwoman, last month criticized Trump’s calls for licenses to be revoked from TV news organizations whose coverage he dislikes.

“While repeated attacks against broadcast stations by the former President may now be familiar, these threats against free speech are serious and should not be ignored,” Rosenworcel said at the time. “As I’ve said before, the First Amendment is a cornerstone of our democracy. The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”

Former Chairman Ajit Pai, a Republican, rejected the idea of revoking licenses in 2017 after similar calls from Trump. Pai said that the FCC “under my leadership will stand for the First Amendment” and that “the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.”

Carr believes differently. After the Saturday Night Live incident, Carr told Fox News that “all remedies should be on the table,” including “license revocations” for NBC.

We’ve pointed out repeatedly that the FCC doesn’t actually license TV networks such as CBS or NBC. But the FCC could punish affiliates. The FCC’s licensing authority is over broadcast stations, many of which are affiliated with or owned by a big network.

Carr targets “censorship cartel”

Carr wrote last night that “we must dismantle the censorship cartel and restore free speech rights for everyday Americans.” This seems to be referring to making social media networks change how they moderate content. On November 15, Carr wrote that “Facebook, Google, Apple, Microsoft & others have played central roles in the censorship cartel,” along with fact-checking groups and ad agencies that “helped enforce one-sided narratives.”

During his first presidential term, Trump formally petitioned the FCC to reinterpret Section 230 of the Communications Decency Act in a way that would limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable.

Trump and Carr have claimed that such a step is necessary because of anti-conservative bias. In his Project 2025 chapter, Carr wrote that the FCC “should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”

Carr’s willingness to reinterpret Section 230 is likely a big plus in Trump’s eyes. In 2020, Trump pulled the re-nomination of FCC Republican member Michael O’Rielly after O’Rielly said that “we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way. Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making.”

Carr to end FCC diversity policies

Last night, Carr also said he would end the FCC’s embrace of DEI (diversity, equity, and inclusion) policies. “The FCC’s most recent budget request said that promoting DEI was the agency’s second highest strategic goal. Starting next year, the FCC will end its promotion of DEI,” Carr wrote.

The FCC budget request said the agency “will pursue focused action and investments to eliminate historical, systemic, and structural barriers that perpetuate disadvantaged or underserved individuals and communities.” The Rosenworcel FCC said it aimed to create a diverse staff and to help “underserved individuals and communities” access “digital technologies, media, communication services, and next-generation networks.”

Carr dissented last year in the FCC’s 3-2 decision to impose rules that prohibit discrimination in access to broadband services, describing the rulemaking as “President Biden’s plan to give the administrative state effective control of all Internet services and infrastructure in the US.”

Another major goal for Carr is forcing Big Tech firms to help subsidize broadband network construction. Carr’s Project 2025 chapter said the FCC should “require that Big Tech begin to contribute a fair share” into “the FCC’s roughly $9 billion Universal Service Fund.”

Media advocacy group Free Press said yesterday that “Brendan Carr has been campaigning for this job with promises to do the bidding of Donald Trump and Elon Musk” and “got this job because he will carry out Trump and Musk’s personal vendettas. While styling himself as a free-speech champion, Carr refused to stand up when Trump threatened to take away the broadcast licenses of TV stations for daring to fact-check him during the campaign. This alone should be disqualifying.”

Lobby groups representing Internet service providers will be happy to have an FCC chair focused on eliminating broadband regulations. USTelecom CEO Jonathan Spalter issued a statement saying that “Brendan Carr has been a proven leader and an important partner in our shared goal to connect all Americans. With his deep experience and expertise, Commissioner Carr clearly understands the regulatory challenges and opportunities across the communications landscape.”

Pai, who teamed up with Carr and O’Rielly to eliminate net neutrality rules in 2017, wrote that Carr “was a brilliant advisor and General Counsel and has been a superb Commissioner, and I’m confident he will be a great FCC Chairman.”

Trump’s FCC chair is Brendan Carr, who wants to regulate everyone except ISPs Read More »

Verizon, AT&T tell courts: FCC can’t punish us for selling user location data

AT&T, FCC, Location Data, Policy, T-Mobile, verizon / Paul Patrick / November 8, 2024

Supreme Court ruling could hurt FCC case

Both AT&T and Verizon cite the Supreme Court’s June 2024 ruling in Securities and Exchange Commission v. Jarkesy, which held that “when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.”

The Supreme Court ruling, which affirmed a 5th Circuit order, had not been issued yet when the FCC finalized its fines. The FCC disputed the 5th Circuit ruling, saying among other things that Supreme Court precedent made clear that “Congress can assign matters involving public rights to adjudication by an administrative agency ‘even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned to a federal court of law instead.'”

Of course, the FCC will have a tougher time disputing the Jarkesy ruling now that the Supreme Court affirmed the 5th Circuit. Verizon pointed out that in the high court’s Jarkesy decision, “Justice Sotomayor, in dissent, recognized that Jarkesy was not limited to the SEC, identifying many agencies, including the FCC, whose practice of ‘impos[ing] civil penalties in administrative proceedings’ would be ‘upend[ed].'”

Verizon further argued: “As in Jarkesy, the fact that the FCC seeks ‘civil penalties… designed to punish’ is ‘all but dispositive’ of Verizon’s entitlement to an Article III court and a jury, rather than an agency prosecutor and adjudicator.”

Carriers: We didn’t get fair notice

Both carriers said the FCC did not provide “fair notice” that its section 222 authority over customer proprietary network information (CPNI) would apply to the data in question.

When it issued the fines, the FCC said carriers had fair notice. “CPNI is defined by statute, in relevant part, to include ‘information that relates to… the location… of a telecommunications service,'” the FCC said.

Verizon, AT&T tell courts: FCC can’t punish us for selling user location data Read More »