The size, scope, power, and control of the federal government have expanded dramatically since President Joe Biden was sworn into office. His administration has initiated and signed into law trillions of dollars in new spending and promulgated regulations that have made it more expensive and difficult to conduct business or raise a family.
At the top of the list of Biden’s bad policies is the Federal Communications Commission’s proposed reimposition of net neutrality rules from the Obama era that reclassifies the internet as a telecommunications service under Title II of the Communications Act of 1934. This reclassification was adopted on Oct. 19, 2023, in a partisan 3-2 vote.
The public should be gravely concerned that the FCC has voted to pursue such a wasteful, fruitless, and likely unconstitutional effort to reestablish and expand government control over a vibrant sector of the economy. The topic of net neutrality was resolved in December 2017, when the Obama-Biden 2015 Open Internet Order was overturned by the adoption of the Restoring Internet Freedom Order. The decision was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in October 2019.
The OIO led to reduced private sector investment and innovation and slowed down broadband deployment. Warnings that it would be the end of the internet as everyone knew it if net neutrality was repealed proved to be false. Service is cheaper, faster, more innovative, and more widespread across the country than ever before.
The FCC’s new “Open Internet Order” should be called the “Close the Internet Order.” It would be even worse than the original OIO because it would impose rate regulation despite promises by various administration officials that they have no intent to do so. Biden’s net neutrality is not only a waste of time and money but also jeopardizes America’s leading position in global telecommunications.
The on-again-off-again effort to regulate the internet has led to five federal court cases since 2005, culminating in the 2019 RIFO decision. Two former solicitors general from the Obama-Biden administration wrote that another round of litigation “would waste countless resources for the government, industry, and the public, while distracting all parties from more promising efforts, such as obtaining congressional action to resolve these important issues.” They concluded that the rulemaking would eventually be struck down by the Supreme Court. Indeed, net neutrality will more than likely become another example of unconstitutional overreach by the Biden administration rejected by the judiciary.
But before that occurs, the reimposition of net neutrality will adversely affect millions of people who want but do not have access to the internet. The Infrastructure Investment and Jobs Act in 2021 included $42.5 billion for the Broadband Equity Access and Deployment program under the National Telecommunications and Information Administration.
However, BEAD funding is unlikely to achieve its objectives if the Biden administration moves forward with net neutrality, especially if it also enforces digital discrimination rules adopted in a partisan 3-2 FCC vote on Nov. 15, 2023. Senate Commerce, Science, and Transportation Committee Republican members, led by ranking member Ted Cruz (R-TX), in their Nov. 10, 2023, letter to the FCC, correctly noted that the digital discrimination order will “create a crippling uncertainty for the U.S. broadband industry, chill broadband investment, and undermine Congress’s objective of promoting broadband access for all Americans.” The combination of these two orders will leave millions of unserved communities across the country on the wrong side of the digital divide and likely waste billions of taxpayer dollars.
FCC Commissioner Nathan Simington stated during the Nov. 30, 2023, House Energy and Commerce Subcommittee on Communications and Technology’s FCC oversight hearing: “I implore Congress to pass legislation to create an updated legislative framework for the modern internet ecosystem that would end the continued whipsawing of industry over the Title II fight and create clear rules of the road for all companies in the internet ecosystem — from e-commerce and social media platforms to network operators alike.” That would, in fact, be the best way to solve this problem.
Unfortunately, Congress has not only failed to enact legislation to resolve Title II and net neutrality but also neglected to update telecommunications statutes since 1996. Continued lack of action by Congress will enable the FCC to push through its expansive and disastrous policies, which means that innovation and investment will be stifled, businesses and families will remain unconnected, and America’s global leadership in telecommunications will be threatened.
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Deborah Collier is the vice president for policy and government affairs at Citizens Against Government Waste.