People have watched the Biden administration employ a wide array of aggressive regulatory policies that increasingly restrict American companies and constrain economic growth. And although the competition is stiff, it would be hard to find a more hostile regulatory barrage than what has been coming out of my old institution, the Federal Communications Commission.
Under the nice-sounding but flawed initiatives on “net neutrality,” “digital anti-discrimination,” and “data security,” the FCC has broken out of its statutory moorings and charted a reckless 270-degree bearing toward total government control over the broadband sector.
Take, for example, the agency’s recent digital discrimination order. After searching high and low for discriminatory practices, the FCC found providers were only following economic incentives. Instead of simply embracing this good news, the FCC decided to read into the infrastructure law a mandate to give itself near unlimited powers to declare broadband providers, and the array of companies and individuals tangentially connected to them, guilty of discrimination if some statistician somewhere could find the uneven outcomes that are the certain result in any large human endeavor. As a result, broadband providers will now be subject to the whims of left-wing groups deputized by the agency to sully company names and reputations unless they seek and obtain political protection.
In the case of data security, Congress specifically passed a law halting FCC action on setting new security requirements for broadband providers. Lawmakers also used the Congressional Review Act to nullify the FCC’s 2016 data security regulations. Notably, the CRA explicitly prohibits agencies from adopting future rules that are “substantially similar” to the rejected ones. Despite that prohibition, the Biden FCC has promulgated “new” rules that look a lot like the old ones, forcing broadband providers to live in a world of uncertainty until the FCC’s mess can be litigated in court.
Which brings us to the FCC’s ham-fisted decision to regulate internet providers as if they were 1930s Ma Bell public utilities. The original “net neutrality” argument that internet providers would block or slow competitors’ traffic has become less and less credible as each of the last 20 years passed without a problem. But no matter, the Biden FCC simply conjured up a new rationale to classify broadband providers as utilities in need of oversight and innovation-killing price controls. Now public and scheduled for a vote in a few weeks, the end result is a fait accompli.
None of these three regulatory policies have been promulgated to fix any real problem. Instead, their aim is to give the administrative state more power over the internet.
Seen clearly, the great uncertainty providers must fear from these bureaucratic entanglements is a primary feature of the FCC’s actions, not an incidental bug. Broadband providers must now seek agency engagement, assistance, and approval. With agencies empowered to favor some companies and punish disfavored others, broadband providers and the wider industry will become beholden to the government out of fear of retribution.
By smothering the industry with irrational policies, the administrative state will have greater sway over what providers and consumers can do with the technology. None of this bodes well for broadband users or a free society, but it seems to fit nicely within the administration’s goals.
Michael O’Rielly served as a commissioner at the Federal Communications Commission from 2013-2020. He is a visiting fellow at the Hudson Institute and a senior fellow at the Media Institute.
