The last thing the internet needs is self-anointed regulatory saviors swooping in to ‘fix’ what isn’t broken using the crude tools of a bygone era.
The last thing the internet needs is self-anointed regulatory saviors swooping in to ‘fix’ what isn’t broken using the crude tools of a bygone era.
W hen the Federal Communications Commission voted in 2017 to end its two-year repressive effort to regulate broadband providers under 1930s-era Title II utility laws, critics on the left loudly predicted that the internet would collapse into a dystopian hellscape of blocking and throttling, slower internet speeds, jacked-up prices, and the death of streaming video. From that moment forward, reinstating Title II became a rallying cry, if not an article of faith, for some advocacy groups and policy-makers.
No one should be surprised, then, that the commission recently announced — within hours of Democrats’ regaining a majority at the agency — that it would move swiftly to once again browbeat and micromanage broadband providers via Title II. The only real suspense was over how the FCC might conceivably justify the reversal, considering that every apocalyptic prediction that net-neutrality activists made after 2017 turned out to be pure gibberish.
Since my fellow Republican commissioners and I allegedly “ended the internet” in 2017, average internet speeds in the U.S. have more than tripled. Competition is surging thanks to record-breaking private investment between competing technologies. Consumer prices for internet services have fallen relative to inflation. Streaming services have continued their ascent. And our resilient, robust networks kept America’s economy afloat — providing connectivity to communicate, work, educate, shop, entertain, and so much more — during the global Covid pandemic.
So, after the Left’s previous parade of horribles proved to be pure fiction, what possible case could the commission make for swinging one of its heaviest regulatory sledgehammers at a broadband marketplace that, by any conceivable measure, is thriving?
Not much of a case at all, it turns out.
The proposed rulemaking the commission kicked off last Thursday claims that this regulatory power grab is needed to protect national security and public safety and to advance rural broadband deployment. None of these arguments holds up to scrutiny.
The draft rule claims that the FCC needs Title II authority to prevent hostile foreign state-owned companies from operating broadband services in the U.S. Beyond the fact that this has nothing to do with net neutrality, it’s also flat-out false. The commission has leaned on its Title II authority to kick three Chinese telecom providers out of the U.S. market in recent years, but only because it had previously granted those companies authority to offer Title II services. That’s a far cry from the FCC’s argument that it cannot adequately secure broadband networks without a massive expansion of its regulatory scope.
Indeed, the commission already has numerous tools at its disposal to address national-security threats posed by foreign firms, including the equipment-authorization process that Congress recently strengthened. Just ask whether Huawei — whose network equipment the FCC blacklisted for U.S. use in 2019 — found the commission powerless. Besides, even if the commission’s existing authority were deemed insufficient for safeguarding national security — highly unlikely, in my view — other agencies and departments of the federal government’s “Team Telecom” have loads to spare.
The FCC’s claims that Title II is necessary to protect public safety are equally empty. The FCC already requires broadband providers to comply with the Communications Assistance for Law Enforcement Act. Is it implying that this long-standing FCC policy is unlawful?
But the most absurd of the commission’s new, ever-shifting arguments for Title II is the claim that it needs this new authority to promote rural broadband deployment. No policy-maker can suggest with a straight face that saddling broadband networks with new regulatory burdens and compliance costs — especially the ever-present risk of future price regulation and the Kafkaesque requirement to comply with an undefined and amorphous “general conduct standard” — would lead providers to invest more in already risky rural build-out projects.
Clearly, the opposite is exactly the case: Increasing the uncertainty and risk in network-builders’ financial models will only decrease their appetite to invest — particularly in markets where American families have no broadband service at all.
The draft rule even has the gall to cite the massive $65 billion commitment to universal broadband that Congress made in the 2021 infrastructure bill as a reason for why the FCC needs expanded authority — while conveniently ignoring that Congress expressly chose not to reclassify broadband as a common carrier in that legislation. In fact, Congress has never so much as hinted in any statute that the FCC should reclassify broadband as a Title II common carrier. That’s the main reason why most legal experts — including two of the Obama administration’s top legal minds — agree the FCC’s latest proposal would likely be dead on arrival at the Supreme Court.
Wasting months of FCC staff resources and years of subsequent legal costs defending a regulatory rule likely to lose in court is troublesome. But pushing ahead anyway, when the FCC can’t find a credible reason why the rules are even necessary, is mind-blowingly absurd.
The last thing the internet needs is self-anointed regulatory saviors swooping in to “fix” what isn’t broken using the crude tools of a bygone era.