Despite Internal Opposition, FCC Votes 3-2 in Favor of Taking Control of the Internet

By B.N. Frank

Years ago, the Federal Communications Commission (FCC) was identified as a “captured agency” because it has a tendency to NOT do its job: protecting Americans against the telecom industry (see 1, 2). Not protecting Americans is an issue that has also occasionally been identified even by FCC commissioners, including last week by Brendan Carr in re the agency’s interest in taking control of the internet. Of course, that didn’t stop other commissioners from voting in favor of it.

From The Highwire:

The FCC Just Voted to Take Control of the Internet

The FCC voted today on a plan that gives the Federal government full control over the Internet. The plan passed by a 3-2 margin. A press release posted immediately after the meeting stated, in part, “Under the new rules, the Commission can investigate possible instances of discrimination of broadband access, work with companies to solve problems, facilitate mediation, and, when necessary, penalize companies for violating the rules. The FCC will review consumer complaints of digital discrimination of access through an improved consumer complaint portal and staff will meet monthly to assess trends in complaint patterns. Finally, the Commission adopted model policies and best practices that will support states, local and Tribal governments in their efforts to combat digital discrimination.”

The decision means that the Biden Administration is well on its way to implementing the plan that FCC commissioner Brendan Carr said “…reads like a planning document drawn up in the faculty lounge of a university’s Soviet Studies Department.” Commissioner Carr sent out his letter of dissent last week to warn the public about this “unlawful power grab” that “chooses central planning over free market capitalism.”

The plan is marketed as though it will prevent digital discrimination and a way to ensure equal access to broadband internet in the United States. While equal access is a component of liberty and freedom, this plan gives sweeping access and regulatory control over all aspects of the Internet business. According to the plan document, the FCC would have the power to regulate the following aspects as it relates to each Internet Service Provider:

“Network infrastructure deployment, network reliability, network upgrades, network maintenance, customer-premises equipment, and installation, speeds, capacities, latency, data caps, throttling, pricing, promotional rates, imposition of late fees, opportunity for equipment rental, installation time, contract renewal terms, service termination terms, and use of customer credit and account history, mandatory arbitration clauses, pricing, deposits, discounts, customer service, language options, credit checks, marketing or advertising, contract renewal, upgrades, account termination, transfers to another covered entity, and service suspension.”

The plan goes on to state that all these aspects need to be within the realm of Federal regulation because they could all affect a consumer’s ability to access broadband. The plan further states, “Consequently, we agree with Lawyers’ Committee for Civil Rights Under Law that adopting a flexible approach is necessary ‘to capture the long tail of intangible variables that are difficult to list exhaustively and are subject to change.’ Second, our definition provides us with the advantage of flexibility, which will “future-proof” our rules as technologies, policies, and practices change over time. For these reasons, we reject the argument that by including certain quality of service metrics in 60506(a)(2), Congress foreclosed consideration of other measurable elements of service quality in evaluating whether equal access has been achieved.”

Carr’s letter states, “President Biden’s plan sweeps entire industries within the FCC’s jurisdiction for the first time in the agency’s 90-year history. It would be one thing if the FCC cabined its intrusive new regime to ISPs or even businesses within the communications sector. It does not. The draft FCC order says that “we are not explicitly tasked with regulating entities outside the communications industry, but it then goes on to say that the FCC will do so in this case nonetheless.”

Carr further discusses the other industries the FCC could regulate under this plan. This plan would open the door to regulating landlords, construction crews, marketing agencies, banks, and even the government. Regarding Internet access, all of these industries can and would be regulated by the FCC.

Carr’s letter states all businesses in these industries can be “regulated by the FCC and liable for any act or omission that the agency determines has an impermissible impact on the consumer’s access to broadband. Congress never authorized the FCC to regulate these industries or entities.”

Governments throughout history have been known to abuse power, which was the basis of the three branches of government enshrined in the Constitution. These branches provide checks and balances. It is well-known how slow the court systems can work to check executive power. The Biden administration’s FCC is asking to have access to regulate all aspects of business for private ISPs in addition to landlords, banks, construction crews, and marketing agencies. The authors of this plan tried to leave as much leeway for any potential ‘need’ to regulate any industry now or in the future. As technology advances, they want to be sure they have regulatory control to ensure private companies are not discriminating against any group of people by not providing equal access to services.

Carr’s letter stated, “Even in the absence of any evidence of intentional discrimination, the Biden plan states the FCC can impose potentially unbounded liability if the agency finds that some act or even failure to act happened to result in a disparate impact based on the FCC’s own judgment. Reading this theory of liability into the law conflicts with the Supreme Court’s civil rights precedent. The FCC should not adopt it.”

Biden’s Administration is asking for complete regulatory power to ensure no discrimination, even though there have been no concerns or proof that discriminatory practices are taking place. The FCC would have the sole power to determine whether an act or lack of action is discriminatory. Without a lengthy judicial process, this action and power grab could not be checked.

Published Wednesday, November 15, 2023