In this instance the NTIA blatantly seeks to not only violate the text of the legislation it’s applying, but also the explicit assurances of its own personnel.

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Federal bureaucracies’ runaway self-expansion has reached such extremes that the United States Supreme Court stands poised to overturn the longstanding doctrine of “Chevron Deference” toward them in one of its most anticipated rulings this term.  

In a new and even more egregious escalation of federal administrative abuse, however, the Biden Administration National Telecommunications and Information Administration (NTIA) doesn’t merely seek to exploit an alleged statutory ambiguity, which lies at the core of “Chevron Deference.”  

No, in this instance the NTIA blatantly seeks to not only violate the text of the legislation it’s applying, but also the explicit assurances of its own personnel.  

If not corrected, rural Virginia residents desperate for broadband would pay the price for that administrative agency abuse.  

At the heart of this latest example of bureaucratic abuse is a Biden Administration effort to impose broadband internet price controls, in defiance of Congressional legislation and agency assurances to the contrary.  

In passing the Infrastructure Investment and Jobs Act (IIJA) in 2021, a bipartisan Congress made it clear that in seeking to expand broadband access to Americans without it, rate regulation was strictly prohibited.  As signed into law, one of the bill’s amendments specifically stated that prohibition.  

Confirming that strict prohibition, Biden Administration officials stated under oath that the IIJA simply “does not allow” price controls as it carries out the law in its Broadband Equity, Access, and Deployment (BEAD) Program.  

In testimony before the U.S. Senate, for example, NTIA Administrator Alan Davidson unequivocally responded to Senator John Thune (R – South Dakota) that, “I agree that the IIJA does not allow NTIA to engage in rate regulation in the BEAD program,” and added, “history has shown that rate regulation is not the most effective policy for ensuring affordable services.”  

Indeed, U.S. Secretary of Commerce Gina Raimondo made the same commitment to Senator Thune when challenged to foreswear price controls:  

“Yes, we do not require that.  I want to be clear.  We are not rate regulating.  We are not price setting.  And we are not requiring states to do that.”  

Secretary Raimondo made the same commitment last April, telling Senators that, “As you know, the statute expressly prohibits rate regulation,” even highlighting that, “I was heavily involved in negotiating that, so I understand the limits and we will comply with the statute.”  

Quickly reversing those promises, however, the NTIA began signaling that it very much was interested in imposing rate regulation.  

Then, late last year, Virginia Department of Housing and Community Development Broadband Policy Analyst Chandler Vaughn stated that in implementing Virginia’s BEAD plan, he sought flexibility to refrain from broadband rate regulation.  According to Mr. Vaughn, however, he was instructed by the NTIA that he must engage in rate regulation, contrary to the law and Biden Administration officials’ sworn testimony.  

Accordingly, the NTIA seeks to engage in that age-old discredited practice of price controls, which only result in shortages, not lower prices for consumers.  

Unfortunately, that’s business as usual for the Biden NTIA, which recently petitioned the Federal Communications Commission (FCC) to impose “disparate impact” standards that would grant the FCC effective price control authority where it perceived discrimination.  For its own part, the FCC also proposes rate regulation in resurrecting its legally and economically defective “Net Neutrality” proposal from the dead.  

Tragically, the NTIA’s illegal rate regulation obsession threatens catastrophic damage to the BEAD program's effort to expand high-speed internet access to those in need, as former FCC Commissioner Michael O’Reilly summarized well:  

Near universal support exists for ensuring that all Americans have access to the benefits of broadband service.  For those families living in Virginia without adequate access to broadband service, your government seems to be abandoning your interests in favor of a harmful policy mandate.  Hopefully, clearer heads will prevail, and Secretary Raimondo will see the wisdom of Virginia’s vision on broadband.  Absent that, perhaps the Biden Administration will realize the citizens from a politically important battleground state won’t appreciate the Old Dominion being punished for rejecting flawed initiatives.  

That’s precisely the message recently sent by CFIF alongside a wide coalition of conservative and free-market organizations to Secretary Raimondo.  

Secretary Raimondo’s Commerce Department must ensure that NTIA executes the IIJA’s broadband expansion program in compliance with both the text and the law and her own sworn Senate testimony.  

In addition, it must be clear to states pursuing broadband expansion that rate regulation under BEAD plans is strictly prohibited, lest this worthy effort fail due to its own illegal and incompetent execution.