Court Halts Radical Biden/Harris “Net Neutrality” Effort

Thanks to a federal appellate court, any American who uses the internet just escaped catastrophe in the form of the Biden/Harris administration’s latest attempt to radically remake a critical sector of the economy.  

Had the court not intervened, American consumers would be facing the disastrous imposition of socialized internet service in the form of so-called “Net Neutrality.”  

That’s not hyperbole or ideological alarmism, it’s demonstrable fact.  

To understand why, let’s roll the tape on three decades of the internet era.  

At the dawn of the internet age in the mid-1990s, the federal government took a “light touch” regulatory approach to internet service.  Under that approach, the internet reshaped our economy and lives at a pace unmatched in human history.  

Naturally, that made it a juicy target for left-wing activists who desperately sought to declare it a “public utility” subject to regulation by the federal regulatory state.  

With the arrival of the Obama/Biden administration, they finally got their chance.  After a string of court defeats, Obama’s Federal Communications Commission (FCC) finally succeeded in its reclassification effort as his administration drew to a close.  

As stated above, the consequences were immediate and disastrous.  

For the first time in history outside of an economic recession, private investment in broadband actually declined, falling 20% and a whopping $5.6 billion in its first year alone.  

As the Trump administration began, however, reversing the Obama administration’s “Net Neutrality” order became a leading priority.  Under new FCC Chairman Ajit Pai, the Obama regulation was rescinded, and internet freedom that had prevailed for two decades before Obama’s FCC decided to “fix” something that wasn’t broken was restored.  Private internet investment once again increased, and domestic internet speeds increased approximately 40% in the first year alone.  

It turned out that the Trump FCC’s restoration of internet freedom occurred just in time.  

Although most people would’ve expected U.S. internet service to crash as workers and students migrated online en masse from offices and schools, domestic broadband speeds actually doubled in 2020.  In more hyper-regulatory Europe, however, networks struggled to handle increased use and content providers like Netflix were asked to lower video quality from high-definition to standard as a consequence.  

The Biden/Harris administration, however, decided to reverse course once again and attempt to restore the demonstrably destructive “Net Neutrality” order in May of this year.  Like the administration’s inexplicably pro-Iran foreign policy and other “Bidenomics” agenda items, there was simply no sound policy reason for doing so.  Ideology and increased government control over our lives and economy obviously claim priority over efficiency and effectiveness for the Biden/Harris administration.  

In the intervening years since the Obama/Biden administration, however, the U.S. Supreme Court had issued a string of rulings curtailing administrative state excess, including this year’s decision overturning so-called “Chevron Deference.”  

For that reason, former Obama/Biden administration Solicitors General Donald Verrilli and Ian Gershengorn warned the Biden/Harris administration that its attempt to resurrect “Net Neutrality” would be rejected via court challenge:  

The U.S. Supreme Court has made crystal clear, as recently as this June when it struck down President Joe Biden’s student loan forgiveness program, that it will invalidate federal agency regulations on matters of major economic and political significance – what the court refers to as “major questions” – unless Congress has given the agency specific, unambiguous authority to regulate on the subject.  …  In the last two years alone, the court has used the doctrine to strike down the CDC’s eviction moratorium, OSHA’s workplace vaccine mandate, and the EPA’s clean power initiative, as well as the Biden student loan plan. The message from the court is clear.  

Last week, the Sixth Circuit Court of Appeals vindicated their prediction in short order by granting an injunction against the Biden/Harris administration’s “Net Neutrality” order:  

Net neutrality is likely a major question requiring clear congressional authorization.  …  Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers.  To the contrary, Congress specifically empowered the Commission to define certain categories of communications services and never did so with respect to broadband providers specifically or the internet more generally.  Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power, and Petitioners have accordingly shown that they are likely to succeed on the merits.  

It shouldn’t have required costly litigation to halt the Biden/Harris administration’s attempt to socialize internet service.  The potential cost to consumers and our economy should’ve been sufficient to maintain the light-touch regulatory approach that has paid such dividends.  

As the Biden/Harris administration now sets its sights on remaking the Supreme Court and judicial branch, Americans might want to stop and consider that the judicial branch actually remains one of the few institutions continuing to function properly.  

The Sixth Circuit’s ruling provides the latest illustration, and Americans should be grateful.

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.