Biden Administration Shrinks from California “Net Neutrality” Challenge

With the Biden era dawning, we’ve reached a nihilistic societal point when leftists and other government interventionists don’t even attempt to advance public policy arguments based upon verifiable history, facts or evidence.

The latest illustration arrived this week, when the Biden Department of Justice (DOJ) abandoned the federal government’s legal challenge to a rogue California “Net Neutrality” regulation.  That decision confirms a broader Biden Administration revival of that discredited and discarded Obama Administration effort to begin regulating internet service as a “public utility” under laws enacted in the 1930s for telephones.

Proponents of that effort have even resuscitated previous talking points, which already amounted to absurdist hyperbole at the time, but today suffer the additional indignity of refutation by irrefutable experience over the past four years.

From the outset of the internet era in 1996 well into the Obama Administration, the Federal Communications Commission (FCC) maintained a “light touch” regulatory approach to the internet that obviously allowed it to flourish.

The Obama Administration, however, zealously sought to upend that flourishing internet ecosystem by regulating it in favor of powerful “edge” content providers like Google and Twitter.  After several court defeats, the Obama FCC in 2015 finally succeeded in imposing that alleged “fix” for an internet that wasn’t in any way broken.  As a result, private broadband investment declined for the first time ever outside of a recession.  If anything threatened to “break the internet,” it was so-called “Net Neutrality” regulation.

Fortunately, the Trump Administration FCC under the leadership of former Chairman Ajit Pai recently reversed the Obama FCC’s costly 2015 regulatory framework.  In the first year after reversing the Obama FCC’s “Net Neutrality,” U.S. internet speeds increased by 36% and private broadband investment renewed its ascent.  And in 2020, when internet service became even more critical amid the coronavirus pandemic, U.S. broadband speeds increased an astonishing 91%:

American internet users have had a very good 2020, according to research performed by FairInternetREport.  Median US internet speeds in 2020 doubled to 33.16mbps, up from 17.34mbps in 2019.  Covering the five years of 2016, 2017, 2018, 2019, and 2020, this is the largest speed increase seen in the US, with speeds staying essentially the same in 2016 and 2017 (8.91mbps and 9.08mbps respectively), and 2018 recording a median speed of 12.83.  

Accordingly, U.S. internet speeds stagnated during the years 2016 and 2017 when the Obama FCC’s “Net Neutrality” regulations remained the law.  After restoration of the “light touch” regulatory approach under FCC Chairman Pai, however, U.S. internet speeds accelerated at a record pace.

Undeterred by those actual facts and positive results, “Net Neutrality” activists persuaded California lawmakers and former Governor Jerry Brown to impose those regulations statewide.  In addition to constituting counterproductive public policy, however, California’s law violates the U.S. Constitution, and the Trump Administration sued accordingly.

Our Founding Fathers quickly abandoned the nation’s original Articles of Confederation largely due to its inability to prohibit commercial competition and rivalry among the states, which wreaked havoc on our fledgling nation’s commerce.  In its place, the Founders drafted the Constitution with its Commerce Clause to empower the federal government to regulate interstate commerce and prohibit individual states from acting in ways that disrupted economic harmony.  Although states remained free to regulate commerce within their borders, they could not do so in ways that negatively impacted nationwide commerce in ways contrary to federal government policy.  National commerce would be impossible with a proverbial spaghetti bowl of contradictory state regulations.

The California “Net Neutrality” law contravenes the Constitution’s Commerce Clause by brazenly imposing the very same regulations repealed by the FCC under Chairman Pai in 2017.  Few things constitute “interstate commerce” more than internet service, which is not only interstate in nature, but international.  Accordingly, the California law unduly burdens nationwide internet service and violates the Constitution and federal supremacy.  The federal government, not individual states, possess authority to regulate internet service.

The new Biden Administration, however, appears more interested in placating powerful interests like Google and Twitter than in maintaining a healthy internet.  After the DOJ announced that it was withdrawing its challenge to the California law, acting FCC Chairwoman Jessica Rosenworcel bizarrely said, “Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.”

“Open internet?”  That’s rich, coming from content providers and “Net Neutrality” supporters that egregiously discriminate in which voices and content they allow on their platforms.

Fortunately, private parties remain capable of challenging California’s law even as the Biden Administration shrinks from leadership.  As demonstrated between 2016 and 2017 before its repeal, heavy-handed “Net Neutrality” regulation only serves to discourage private broadband investment and inhibit internet service improvement.  Whether by court or eventually by Congress, the nation will be better off when this destructive experiment is put to rest once and for all.