FCC to vote today on 'sweeping, unprecedented' expansion of internet control under guise of 'inclusion'
Federal Communications Commission (FCC) Commissioner Brendan Carr is accusing the Biden administration of attempting a takeover of the internet, and related private sector businesses, under the guise of “digital equity.”
The proposed regulations are set to be voted on at an FCC meeting in which Carr will be joined by three other commissioners as well as Chairwoman Jessica Rosenworcel.
Digital Inclusion
The concept of digital equity or digital inclusion was first introduced by researchers in 2001. On first impression, one might suspect the academics of merely advocating for affordable internet for the poor. That is something that could easily be accomplished, as the average $900 annual cost of high speed internet service could be partially or even fully covered by the tens of thousands of dollars spent on low income families each year. Already in 2013, the Senate noted that the federal government alone was spending an average of $60,000 annually for each family receiving welfare.
Were the $1 trillion spent on federal welfare programs converted into cash and divided exclusively among the 16.8 million households who lived beneath the federal poverty line last year, the government would be able to mail each of those households an annual check for $60,000.
The NGO Diversity for Social Impact quickly disabuses one of the notion that digital inclusion is just about internet access, though, defining the battle as one for equality of result, not just opportunity. Thus, all people, regardless of how much they or their family invest in their education, are to attain equal capabilities in the cyber world:
Digital equity is a term used to describe the state of being where everyone has access to the same opportunities and resources online, regardless of socioeconomic status or location. It is also known as digital inclusion, digital divide, and cyber equity. . . . Digital equity has been further defined as “the capability of individuals and households to participate in, and benefit from, digital opportunities.” [Emphases added].
In order to attain equal capabilities, websites and technology, the diversity advocates argue, must be equally understandable to all:
Not everyone has the skills necessary to use technology effectively. This can leave them at a disadvantage when competing for jobs or participating in online communities. . . .
We need to ensure that the internet is where people can find the information they need. This means creating websites and online resources that are easy to use and available in multiple languages. . . .
Design technology in a way that is easy for everyone to use. [Emphases added].
The organization does not explain how to make websites on, for example, organic chemistry, electrical engineering or calculus “easy to use.”
200+ pages to "Prevent Digital Discrimination”
The Biden administration agrees that digital equity goes far beyond internet access for the poor. While free internet for impoverished households could be legislated in just a few sentences, the White House is asking the FCC to approve a 218-page order entitled “Preventing Digital Discrimination.”
Opposition within
Leading the battle to block the FCC's adoption of this order is Commissioner Carr. That already powerful agency regulates interstate and international communications by radio, television, wire, satellite and cable. Carr says the new rules included in the order would greatly expand government powers, allowing it to “micromanage nearly every aspect of how the Internet functions.” Where internet infrastructure is built and even how digital services are marketed would be subject to review:
Bipartisan appointments
The FCC's website describes Carr as “the senior Republican on the Federal Communications Commission, having served previously as the FCC’s General Counsel. Nominated by both President Trump and President Biden, Carr has been confirmed unanimously by the Senate three times.” He made headlines in the last year of the Trump administration when he accused Congressman Adam Schiff of running a “secret and partisan surveillance machine” in gathering evidence for Trump’s Senate impeachment trial.
12 years and billions of dollars
Carr published his opposition to the new order with a three page statement posted to the official FCC website. The statement begins with criticism of the government for failing to end the “digital divide” despite spending hundreds of billions of taxpayer dollars to do so and despite Democrats controlling federal agencies for 12 of the last 16 years. Carr noted additional government failures:
- The Administration’s broadband policies are failing.
- The costs of building Internet infrastructure in this country have skyrocketed thanks to the Biden Administration’s inflationary policies.
- The Administration has no plan for filling a now empty spectrum pipeline—one that is vital to America’s economy and geopolitical leadership.
- The FCC is just sitting on spectrum that could connect millions of Americans to new, 5G services
Unconstitutional
Instead of remedying those problems, Carr says Biden is now attempting to give the executive branch powers that must be, but have not been, approved by the legislature.
Congress never contemplated the sweeping regulatory regime that President Biden asked the FCC to adopt—let alone authorized the agency to implement it. [Emphasis added].
The one piece of legislation used by the White House to justify the rules allows only for much more limited regulations, according to Carr. He also says that those more limited rules must not be implemented, in any case, in the absence of actual biases:
Section 60506 of the Infrastructure Act . . . directs the FCC to adopt rules that facilitate equal access to broadband (. . . to the extent technically and economically feasible) and to prevent and eliminate “digital discrimination” based on income level, race, ethnicity, color, religion, or national origin.
After nearly two years and several rounds of comments, the FCC’s draft order concludes that “there is little or no evidence” in the agency’s record to even indicate that there has been any intentional discrimination in the broadband market within the meaning of the statute. But . . .
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. [Emphases added].
Under Carr's analysis, the new rules, as written, could be overturned by the judiciary if they are in fact adopted in today's vote as the set of regulations “conflicts with the Supreme Court’s civil rights precedent.” This would be in addition to First Amendment violations which could be used as an alternative basis for invalidating the rules.
Construction workers penalized by FCC?
Carr goes on to describe how the “Preventing Digital Discrimination” order brings workers in industries related to communications under the control of the FCC, which may then penalize those workers despite the FCC not being tasked with regulating them in the first place.
President Biden’s plan sweeps entire industries within the FCC’s jurisdiction for the first time in the agency’s 90-year history. . . .
The draft FCC order says that “we are not explicitly tasked with regulating entities outside the communications industry” (a rare moment of regulatory humility) but it then goes on to say that the FCC will do so in this case nonetheless (the moment passed).
Landlords are now covered, construction crews are now covered, marketing agencies are now covered, banks are now covered, the government itself is now covered—all newly regulated by the FCC and liable for any act or omission that the agency determines has an impermissible impact on a consumer’s access to broadband. [Emphases added].
You must build regardless of profit
An internet service provider (ISP) determining that it is not profitable to construct internet infrastructure in a certain locale may find itself forced to do so under the proposed rules, even in the absence of any discriminatory intent in choosing not to build in that area.
President Biden’s plan allows the FCC to impose unfunded build mandates on ISPs and unlimited monetary fines on every covered entity. . . . ISPs could very well be compelled to build out Internet infrastructure without any compensation. [Emphases added].
If the ISP does in fact realize losses from the forced work, it would, of course, have to make enough profit elsewhere to avoid bankruptcy.
We set the price
The Hoover Institute says price controls should not even be on the radar for economic policy:
The vast majority of economists understand that economy-wide price controls are a bad idea. The reason is that they prevent prices from adjusting in individual markets. Supplies and demands for various goods change a lot, and avoiding price controls allows prices to adjust to those changes in supplies and demands. Price controls don’t work, period.
The White House believes otherwise. In Carr's words:
President Biden’s plan includes price controls. [The] order that the FCC will vote . . . expressly states that the FCC can use it to regulate broadband pricing and even an ISP’s profitability. . . . But the . . . rules do more than that. The FCC arrogates to itself the power to review and determine the lawfulness of promotional pricing and discounts. It even puts the use of credit checks squarely in the cross hairs. Of course, Congress did not give the FCC the power to do any of this—the agency just creates it out of whole cloth. [Emphases added].
Beware what you don't do
Calling the new rules incompatible with capitalism, Carr describes the unprecedented reach of the regulations to both omissions as well as actions of the people subject to the regulatory scheme:
President Biden’s plan hands the Administrative State effective control of all Internet services and infrastructure in the country. . . . Biden’s plan calls for the FCC to apply a far-reaching set of government controls that the agency has not applied to any technology in the modern era . . .
As exhausting as it is to read that list [of regulated activities], the FCC itself says it is not an exhaustive list. The Biden Administration’s plan empowers the FCC to regulate every aspect of the Internet sector for the first time ever.
The plan is motivated by an ideology of government control that is not compatible with the fundamental precepts of free market capitalism. But it gets worse. The FCC reserves the right under this plan to regulate both “actions and omissions, whether recurring or a single instance.” In other words, if you take any action, you may be liable, and if you do nothing, you may be liable. There is no path to complying with this standardless regime. [Emphases added].
“End of Free Speech”
Glenn Beck published a segment on Carr's analysis warning that free speech was on the line in today's vote.
Carr likewise concludes that the draft of the new rules, “reads like a planning document drawn up in the faculty lounge of a university’s Soviet Studies Department.”
Not alone
The Washington Examiner quoted additional critics of the proposed regulations:
Former FCC policy adviser Evan Swarztrauber said of Biden's plan, "To call it 'extreme' or 'radical' doesn't do this proposal justice."
"Biden is turning 'digital discrimination' into a pretext for regulating everything. For equity," Phil Kerpen, president of American Commitment, said of the Biden plan for the FCC.
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