The announcement by the Biden-controlled FCC that they are going to reinstate Obama-era net neutrality rules is yet another example in a long line of decisions in this administration that are completely detached from any semblance of reality. Obama's rules produced a total stagnation in both broadband deployment and network speed Improvement, the rejection of those rules under the Trump Administration produced a massive expansion of both deployment and network speed. We could not have been prepared for internet demand during the pandemic otherwise. So now the FCC wants to take us back to that era of stagnation? Despite the "Chicken Little" claims that rescinding net neutrality would destroy the internet, the opposite happened, and yet despite societal gains, Biden and his allies on the FCC want to take us back.
The CPAC Foundation is not alone in its concern. Immediately after this proposal was announced, our friend and allies similary issued strong condemnation of the FCC.
A Return to Stringent Regulation
The FCC's draft order to reimplement net neutrality under Title II is a step back from the deregulatory approach that fostered rapid growth and innovation in the broadband industry. According to TechFreedom's Berin Szóka, the order's extensive length and content signal a gloomy forecast for broadband regulation, with insufficient consideration given to its significant economic and political implications. Szóka highlights that only a minimal portion of the document addresses major legal questions likely to be scrutinized by the Supreme Court, such as the validity of broadband reclassification as a common carrier and the nondelegation doctrine.
Economic and Innovation Concerns
The light-touch regulatory regime that followed the repeal of the 2015 Open Internet Order (OIO) is credited by many, including Tom Schatz of Citizens Against Government Waste (CAGW), with allowing the internet and its users to flourish. Schatz and others fear that reinstating net neutrality will undo this progress, stifling innovation and making internet access more costly and complicated. These concerns are supported by data indicating significant improvements in broadband speed and reductions in costs since the deregulation, as highlighted by Phil Kerpen of American Commitment. Kerpen points out that real broadband prices have significantly decreased while speeds have increased, suggesting that the market has effectively adjusted without the need for heavy-handed government intervention.
Legal and Constitutional Challenges
The FCC's draft order will face legal hurdles. The order's cursory treatment of the major question doctrine and the nondelegation doctrine could be its Achilles' heel in future court challenges. The major question doctrine concerns whether such a significant reclassification should be explicitly authorized by Congress, rather than left to agency discretion. Similarly, the nondelegation doctrine, which deals with the limits of congressional authority to delegate powers to regulatory agencies, is barely addressed in the order. These omissions may leave the FCC vulnerable to legal challenges that could derail the implementation of the new rules.
As noted by Szóka, the real battle will likely be fought in the courts, where the FCC will need to defend its order against the backdrop of a Supreme Court increasingly skeptical of administrative overreach. The outcome of this legal confrontation could have far-reaching implications not only for the future of net neutrality but also for the broader landscape of internet regulation in the United States.
Ideological Bias and Government Overreach
Kerpen makes it clear that the FCC is acting out of ideological bias rather than empirical evidence, suggesting that the move to reinstate net neutrality is driven more by political motivations than by a clear need for regulation. This sentiment is echoed in concerns about the potential for net neutrality rules to be used as tools for broader government control over internet content and company practices, echoing historical precedents like the Fairness Doctrine which many believe was used to suppress conservative speech.
A Thorough Drubbling From Jim Pinkerton
In a recent opinion piece by Jim Pinkerton on Breitbart, the subject of government manipulation of language and its implications on broadcast and internet regulations was prominently discussed. Pinkerton draws a parallel between historical regulatory practices such as the Fairness Doctrine and contemporary issues like Net Neutrality, suggesting that both were and are used to suppress conservative viewpoints under the guise of promoting fairness.
The Fairness Doctrine, introduced by the FCC in 1949, was meant to ensure that broadcasters covered controversial topics of public importance in a balanced and fair manner. However, its implementation was skewed against conservative media. Citing Bill Ruder, a former Commerce Department official, he notes that the Doctrine was used strategically to burden right-wing broadcasters, making it financially onerous for them to operate. The repeal of this Doctrine in 1987 by President Ronald Reagan's FCC appointees is seen as a pivotal moment that allowed conservative voices like Rush Limbaugh to flourish on the airwaves. Limbaugh's rise is cited as a prime example of the explosion of conservative media post-repeal, which faced renewed threats of a Fairness Doctrine revival during the Obama administration.
Pinkerton then shifts to the topic of Net Neutrality, which he describes as a digital-era reincarnation of the Fairness Doctrine. Officially, Net Neutrality pertains to how phone and cable companies manage and charge for internet traffic. Pinkerton, however, sees it as another mechanism potentially used by the government to implement control over conservative content online, under the facade of managing internet traffic fairly. This perspective was echoed by Donald Trump in 2014, who criticized the Obama administration's push for Net Neutrality as a power grab affecting the internet.
Despite the repeal of Net Neutrality rules by Trump's FCC appointees in 2017, the Biden administration has moved to reinstate these rules, with the FCC now back under a Democratic majority. Pinkerton portrays this move as a continuation of the government's effort to control the narrative and suppress dissenting voices under the banner of national security, public safety, and fairness. He ties these efforts back to broader concerns about Big Tech collaborations with the government, suggesting that such partnerships have been used to control information, as evidenced during the COVID-19 pandemic and political controversies like the Hunter Biden laptop story.
Pinkerton concludes by underscoring the potential consequences of such regulatory practices on freedom of expression and media diversity. He quotes FCC Commissioner Brendan Carr, a Trump appointee, who labels the reinstatement of Net Neutrality as an unconstitutional overreach by an overzealous administrative state. This narrative is presented as part of a broader critique of what Pinkerton views as a progressive inclination to reinterpret the Constitution to serve contemporary political ends, rather than uphold its original principles.
Through his analysis, Pinkerton challenges the integrity of regulatory actions labeled as efforts to ensure fairness and neutrality, arguing that they instead serve as tools for political and ideological manipulation. This theme of governmental overreach runs throughout the piece, serving as a warning against what he perceives as the encroaching power of the state over free speech and media independence.
What's Next? The CPAC Foundation and Net Neutrality Redux
Because of the sweeping implications for how Americans use the internet--whether through application of rules that serve to silence opposing viewpoints or the ability to throttle (or even shut down) internet access, this issue is a top priority for the CPAC Foundation and its Center for Regulatory Freedom. Expect our experts to draft model language for you to use to let not just the FCC, but the White House and your members of Congress know about your concerns about the latest attack on our freedoms by the Biden Administration and its allies on the FCC.
