Regarding today's action by the FCC classifying Internet providers as public utilities, the following statement may be attributed to Free State Foundation President Randolph May and Director of Policy Studies Seth Cooper:
The FCC's vote to convert broadband Internet providers into regulated public utilities is likely the most momentous power grab by the administrative state thus far in the 21st century. Without any evidence of present consumer or competitive harm, the FCC's Democrat majority has asserted far-reaching government control over Internet providers and the Internet's physical infrastructure. Rarely, if ever, has an administrative agency attempted to seize so much power based on so little evidence. The FCC's action is based only on empty claims of speculative harms. The result almost certainly will be a chilling of investment and innovation.
Unlike most claims for the imposition of public utility regulation, the FCC in this case does not even try to justify its action based on the claims of Internet provider market power. Indeed, it couldn't if it tried, because the high-speed broadband market has become effectively competitive, with cable, fiber, fixed wireless, mobile, and satellite platforms providing consumers with choices. And the record is unequivocal that broadband providers do not block or throttle their subscribers' free speech or access to content of their choice.
The Commission's novel late-blooming invocation national security and public safety as a justification for asserting government control over Internet providers is disingenuous. The order fails to identify any specific security or safety harms or adopt any new targeted security or safety rules to address them.
Finally, and importantly, the FCC's action almost certainly is unlawful and will fail under the Supreme Court’s Major Questions Doctrine. Congress never clearly authorized such a politically and economically significant assertion of government control over the Internet.
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