The Federal Communications Commission on Thursday voted to approve a regulation that will reinstate net neutrality rules that allow the agency to regulate broadband internet access as a telecommunications service.
Net neutrality rules were first imposed during the Obama administration in 2015 but were repealed in 2017 after the Trump administration flipped control of the FCC, which returned broadband internet to being regulated as an information service.
With the Biden administration having returned the FCC to a majority of Democratic appointees, the agency is reinstating net neutrality rules that allow broadband to be regulated under Title II of the Communications Act.
Ahead of the FCC’s 3-2 vote, Biden appointee and Chairwoman Jessica Rosenworcel, said, “I think in a modern digital economy, we should have a national net neutrality policy and make clear the nation’s expert on communications has the ability to act when it comes to broadband. This is good for consumers, good for public safety and good for national security, and that is why we are taking this action under Title II of the Communications Act today.”
FCC Commissioner Brendan Carr, a Republican appointee who opposed the measure, spoke with FOX Business in an interview ahead of the vote and called the move a “power grab, plain and simple.”
“My concern is that there’s no reason for the government to go down this path of granting itself more powers to second guess all the decisions about the internet functions,” Carr explained. “So my worry is that it’s a power grab without any need or justification, and it’s very difficult to predict the harms that could ultimately flow from that.”
Carr noted that many of the concerns expressed by net neutrality’s supporters in the lead up to the regulation’s 2017 repeal didn’t come to pass, and so the advocates for the rule’s reinstatement have shied away from advancing those arguments in the latest debate over broadband internet regulation.
“A lot of people will remember the last time we went through this net neutrality debate back in 2017, and when we repealed the net neutrality rules that were in place, everybody predicted the end of the internet as we know it. People said you would get the internet one word at a time,” he explained. “And obviously, the exact opposite has happened – speeds are up multiple-folds, prices are down in real terms.”
“You don’t see those same arguments being trotted out this time around, because Americans’ own experience shows that that’s not true,” he said. “And so the FCC and activists have gone back to this sort of grab bag of reasons for Title II, but not a single one of them withstands even casual scrutiny.”
Carr noted that some have argued that net neutrality rules are needed for national security purposes, but said that there’s “no gap in national security that Title II is necessary to fill – DHS has lots of authorities in this space, other agencies do.”
Other arguments have focused on the need for privacy rules for broadband, but Carr added “the Federal Trade Commission, our sister agency, already has privacy rules on the books that apply to broadband providers and in fact, once you classify broadband as Title II, you strip the Federal Trade Commission of their jurisdiction because they can’t regulate Title II providers by law.”
Carr explained that while consumers are unlikely to see any immediate change in their internet service, the reinstatement of net neutrality could have a chilling effect on industry’s investment in the sector – slowing the pace of innovation and product enhancements.
“In the short run, in terms of consumers’ everyday experience with the internet, I don’t expect to see a sort of flash to something very different from this. In the long run, what we’ve seen is that these regulations create headwinds when it comes to the billions of dollars that need to be invested,” he said. “In fact, when we did Title II in 2015, we saw the first downturn in investment outside of a recession, and that downturn reversed in 2017. “
Carr went on to explain that he expects there will be legal challenges to the FCC’s reinstatement of net neutrality rules that are likely to result in the regulation being struck down.
“The good news is this is a decision that will ultimately be overturned by the courts, because the Supreme Court has been articulating an increasingly skeptical view of agencies reading statutes to give them powers that Congress never said they had,” Carr said.
“I’m very confident that whether it’s in the court of appeals or ultimately the Supreme Court, this will get struck down under the major questions doctrine because the statute doesn’t clearly give us authority.”
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