The Biden FCC’s Plan to Brake 5G

Rosenworcel wants to reimpose net-neutrality rules that are illegal and unnecessary

WSJ editorial. 

"Remember predictions that Trump Federal Communications Commission Chair Ajit Pai would break the internet by rescinding the Obama “net neutrality” rules? The internet somehow still works and is now even faster. Yet Biden regulators plan to “fix” it by re-imposing political control. 

Democratic FCC Commissioner Anna Gomez was sworn in Monday, and Chair Jessica Rosenworcel is off and running with a new 3-2 majority. On Tuesday she announced plans to reinstate the Obama regulatory regime that reclassified broadband providers as common carriers under Title II of the 1934 Communications Act.

Net neutrality has long been a rallying cry on the left. Progressives claimed during the Obama years that broadband providers had to be regulated as utilities so they wouldn’t slow or block websites. Yet providers weren’t doing so then and haven’t since the Trump FCC scrapped the Title II regime in 2018.

Instead, Americans have experienced faster broadband speeds. By the end of 2019, 94% of Americans had access to high-speed fixed and mobile broadband, up from 77% in 2015. Between 2016 and 2019, the number of rural Americans lacking high-speed internet fell nearly 50%.

Broadband investment dipped after the Obama FCC imposed Title II in 2015. But the Title II rollback and 5G rollout have produced a surge of investment. Last year the industry spent $102 billion on capital expenditure, up from $76 billion in 2016. Prices for internet service have risen 7% since January 2020, much less than the 18.2% increase in the consumer-price index.

Contrast this high-speed U.S. leap to Europe where broadband providers are regulated as utilities. By 2020 U.S. rural fixed broadband deployment led all areas in the European Union. The digital divide between Europe and the U.S. has been growing as investment per household is three times higher in the U.S.

Americans today can enjoy streaming their favorite shows without service interruptions that are common in Europe. The faster U.S. speeds and greater broadband access have enabled more technological innovation, including in artificial intelligence. Farmers can use automated and connected equipment to collect data and grow crops more efficiently.

So what problem is Ms. Rosenworcel trying to fix? Title II isn’t needed to prevent carriers from slowing down service or charging websites more for faster speeds since they aren’t doing either. Her regulation won’t address social media censorship since Big Tech wouldn’t be covered.

But Title II could provide the FCC an opening to regulate rates, though Ms. Rosenworcel says she won’t. The agency might also seek to prohibit providers from giving customers free access to streaming services on grounds that this favors some content providers.

AT&T

provides Max service at no charge to customers with unlimited plans.

Preventing companies from offering perks to consumers can’t be popular. Then again, as Federal Trade Commission Chair Lina Khan showed by suing

Amazon

on Tuesday, progressives are happy to ignore consumer welfare. Their goal is to impose more political control over the economy, and they are dusting off ancient laws to do so.

***

And without the proper legal authority. Former Obama Solicitors General Donald Verrilli and Ian Heath Gershengorn argued in a paper last week that “neither the Communications Act nor the 1996 Telecommunications Act unambiguously authorizes the FCC” to reclassify broadband providers as common carriers. They say doing so would violate the Supreme Court’s major questions doctrine.

This means the new rule without Congress’s authorization is likely to lose in court. “The contentious litigation leading to that inevitable result would waste countless resources for the government, industry, and the public, while distracting all parties from more promising efforts,” they wrote.

A D.C. Circuit Court of Appeals panel in 2016 upheld the Obama Title II rule by invoking the

Chevron

doctrine, which says courts should defer to regulators when laws are silent or ambiguous. But then circuit Judge Brett Kavanaugh wrote a dissent teeing up a High Court challenge before Mr. Pai repealed the Obama rule. Is Ms. Rosenworcel trying to compete with Ms. Khan for most legal defeats?

She wants to jam through the new rule to reduce the odds that Republicans could use the Congressional Review Act to overturn it if they retake the White House and flip the Senate in 2024. But when regulators move fast, they tend to break things, not least the law."