Nothing symbolizes the outgoing Biden administration’s big-government incompetence, arrogance, stubbornness and needless overreach better than its campaign to reimpose so-called “Net Neutrality” on the nation’s internet sector.
Like the Biden administration itself, however, Net Neutrality now faces a well-deserved end thanks to a new ruling from the Sixth Circuit Court of Appeals.
Net Neutrality’s backstory offers just the latest cautionary lesson on the destructive peril of a politicized and activist federal administrative state, one that Americans should remember long after it rightly and finally fades from public debate.
For the internet’s first two decades, the federal government wisely took a “light touch” regulatory approach to internet service, allowing it to become what was arguably the most rapidly transformational innovation in human history.
That light-touch approach, notably, spanned both Democrat and Republican administrations.
As a unanimous Sixth Circuit emphasized in the opening paragraph of its decision, “the Internet has ‘flourished, to the benefit of all Americans, with a minimum of government regulation.’” It continued, “The Federal Communications Commission largely followed this command from the Telecommunications Act of 1996 by regulating the Internet with a light touch for nearly 15 years after enactment.”
The hyper-activist Obama/Biden administration, however, suddenly thought it a good idea to “fix” an internet that wasn’t in any sense broken.
It decided to impose a regulatory regime that benefited powerful content providers by reclassifying internet service as a “public utility” under laws enacted in the 1930s for old-fashioned telephone service.
Nothing like shoehorning a dynamic internet into Depression-era laws to speed up innovation and investment, right?
Astute readers already know the answer.
The most notable impact of the Obama/Biden’s Net Neutrality imposition was that private investment in broadband actually declined for the first time in American history outside of an economic recession. Specifically, investment suffered a $5.6 billion decline during the regulation’s first year and a 20% overall drop.
Considering the fact that public internet use was continuing to experience rapid growth during the period, that sobering fact speaks volumes about the peril of excessive bureaucratic intervention into the nation’s thriving internet service sector.
Fortunately, the Obama/Biden Net Neutrality experiment lived a short life.
Under the leadership of President Trump’s FCC appointees Ajit Pai and Brendan Carr, the new administration restored the previous light-touch regulatory approach to internet service.
The positive results were dramatic and, with the Covid pandemic approaching beyond the horizon, enduring. Commissioner Carr, whom Trump has nominated to lead his incoming FCC, later summarized that, “Since the FCC’s 2017 decision to return the internet to the same successful and bipartisan regulatory framework under which it thrived for decades, broadband speeds in the U.S. have now increased, prices are down, competition has intensified, and record-breaking new broadband builds have brought millions of Americans across the digital divide.”
When Covid subsequently hit, the U.S. internet service sector was ready.
Instead of crashing under the sudden onslaught of tens millions of Americans working and attending school online, broadband speeds actually increased by 91% during 2020 despite the increased traffic. Europe, which practices a more heavily regulatory Net Neutrality-style approach, struggled.
More broadly, Americans’ satisfaction with internet service continued to improve after repeal of Net Neutrality. From 2019 to 2023, public satisfaction with internet speeds jumped from 76% to 85%, satisfaction with signal range and strength rose from 76% to 84%, satisfaction with online security increased from 81% to 88% and satisfaction with internet service reliability rose from 78% to 85%.
In prototypically mindless fashion, however, the Biden/Harris administration decided to reverse course and reimpose the failed Obama/Biden heavily regulatory Net Neutrality regime.
As predicted, due to recent Supreme Court rulings restricting courts’ deference to administrative agency activism, legal challenges were immediate. The Sixth Circuit opinion was unsparing:
Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a “telecommunications service” under Title II and therefore must abide by net-neutrality principles. But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute. Instead, our task is to determine “the best reading of the statute” in the first instance.
Using “the traditional tools of statutory construction” … we hold that Broadband Internet Service Providers offer only an “information service” under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the “telecommunications service” provision of the Communications Act.
Following the Sixth Circuit’s decision, our long national nightmarish experience facing the Net Neutrality zombie appears near its end.
The American electorate and its leaders, however, should keep very much alive its takeaway lessons. Left to the free market, internet service and the rest of the U.S. economy can flourish. If burdened by overzealous federal micromanagement, however, we all suffer. That’s a lesson that the new Congress and the incoming Trump administration should keep as a public policy North Star as their tenure begins.
Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom
Reprinted with permission from CFIF – By Timothy H. Lee
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.
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