Biden Wants the FCC to Fix Net Neutrality—but It Can't Yet.
The FCC can bring back net neutrality and help Americans stay connected during the pandemic — if everything goes its way now.
President Biden has named Jessica Rosenworcel as the acting chair of the Federal Communications Commission (FCC). Rosenworcel, a two-term commissioner who has championed closing the digital divide, restoring net neutrality, and women (she even has a podcast where she talks to women in various communications fields). She’ll head up a divided FCC with two Democrats and two Trump-loyalist Republicans — at least until whoever Biden picks to be the third Democratic commissioner is confirmed.
The FCC is now tasked with reviving the “Broadband Nutrition Label” that was in development in 2016. The label would provide a standardized format for providers to display their price, data allowances and details on performance, similar to the labels you currently see on food at the grocery store.
DIRECTIVES FOR THE FCC FROM THE ORDER:
(i) adopting through appropriate rulemaking “Net Neutrality” rules similar to those previously adopted under title II of the Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in “Protecting and Promoting the Open Internet,” 80 Fed. Reg. 19738 (Apr. 13, 2015);
(iv) prohibiting unjust or unreasonable early termination fees for end-user communications contracts, enabling consumers to more easily switch providers;
(v) initiating a rulemaking that requires broadband service providers to display a broadband consumer label, such as that as described in the Public Notice of the Commission issued on April 4, 2016 (DA 16–357), so as to give consumers clear, concise, and accurate information regarding provider prices and fees, performance, and network practices;
(vi) initiating a rulemaking to require broadband service providers to regularly report broadband price and subscription rates to the Federal Communications Commission for the purpose of disseminating that information to the public in a useful manner, to improve price transparency and market functioning; and
(vii) initiating a rulemaking to prevent landlords and cable and Internet service providers from inhibiting tenants’ choices among providers.
Typically, the new president brings in someone new to be the FCC chair, but it’s not unprecedented for an acting chair to get the permanent spot. Trump did just that with Ajit Pai, who was a commissioner before being named as chair. Rosenworcel, an Obama appointee, is seen as a contender for the top job, and she has supporters.
"The order tackles four issues that limit competition, raise prices, and reduce choices for internet service," the Biden fact sheet's broadband section said. "More than 200 million US residents live in an area with only one or two reliable high-speed internet providers, leading to prices as much as five times higher in these markets than in markets with more options. A related problem is landlords and internet service providers entering exclusivity deals or collusive arrangements that leave tenants with only one option. This impacts low-income and marginalized neighborhoods, because landlord–ISP arrangements can effectively block out broadband infrastructure expansion by new providers."
Biden's order encourages the FCC to "prevent ISPs from making deals with landlords that limit tenants' choices." The FCC technically bans exclusive agreements for TV and telecom services in multi-unit buildings but hasn't stamped out the problem.
Biden Targets Hidden Fees and Switching Costs
The next part of Biden's fact sheet covers the misleading advertised prices used by ISPs to hide the true cost of service. "Even where consumers have options, comparison shopping is hard. According to the FCC, actual prices paid for broadband services can be 40 percent higher than advertised," the fact sheet said.
Biden's proposed solution is to bring back the Obama-era "nutrition labels" that were designed to give customers information about hidden fees, data caps, overage charges, speed, latency, packet loss, and so on. Biden's fact sheet said the executive order "encourages the FCC to revive the 'Broadband Nutrition Label' and require providers to report prices and subscription rates to the FCC."
Biden further asks the FCC to "limit excessive early termination fees," because customers in areas with competition "may be unable to actually switch because of high early termination fees—on average nearly $200—charged by internet providers."
Restoring Net Neutrality Rules
Finally, Biden encouraged the FCC to "restore net neutrality rules undone by the prior administration." Without the Obama-era net neutrality rules, "big providers can use their power to discriminatorily block or slow down online services," Biden wrote.
ISPs do have to follow net neutrality rules in California and Washington state because of state laws and may do so in other states for the sake of simplicity in network operations and because they don't want to give the government more incentive to impose stronger regulations while the long-term status of net neutrality is unsettled. Reviving the FCC's Obama-era net neutrality rules would likely involve reclassifying broadband providers as common carriers under Title II of the Communications Act again to establish a nationwide framework for protecting net neutrality.
Senator Ed Markey (D–Massachusetts) applauded Biden's call for restoring net neutrality rules. "As soon as there are three Democratic commissioners in place, the FCC must act without delay to reclassify broadband as a Title II service and reassert its authority over broadband," Markey said. "I also plan to soon introduce legislation to do the same by statute. We cannot and will not stop working until net neutrality is the law of the land." The pandemic "highlighted what we already knew: broadband isn't a luxury. Like running water and electricity, it is an essential utility that everyone needs," Markey said.
What the FCC will do
It’s pretty clear that the Biden FCC will want to do as much as possible to address the digital divide. Broadband affordability is a major part of this. Along with expanding E-Rate and Lifeline programs and continuing work to increase access in rural and tribal areas, expect a Biden FCC to reverse the net neutrality repeal and reclassify broadband internet as a Title II service under the Communications Act. This would subject broadband internet carriers to the same increased oversight and rate regulations that phone companies have. So, where Pai had to ask companies not to cut off homes or businesses from the internet if they couldn’t pay their bills during the pandemic and to expand their low-income programs (the results of which are up for debate), an FCC that classified broadband as a Title II carrier would have more leverage to require it.
Under Title II, the FCC was able to establish the authority to require ISPs to get consumers’ permission before sharing certain information about their internet lives, including browsing history, location, and email contents. This was seen as a big win for data privacy, and Wheeler hopes that the new FCC will find a way to restore those privacy protections.
The Biden FCC will also have to help facilitate the spread of 5G across the country and will be responsible for freeing up more bands in the spectrum to provide it. Increased 5G access would give more Americans access to higher internet speeds in more places, which has become a priority during the pandemic. While the current FCC is already working on this effort, some think the Biden administration will promote the interagency cooperation necessary to do it quickly. During the Trump administration, different agencies fought over spectrum, which held back efforts to open up more bands and expand 5G’s potential.
“The way that Trump ran things was to set everybody against each other,” Harold Feld, senior vice president at open internet advocacy group Public Knowledge, told Recode. “It has become much more of a problem in that federal agencies have now just increasingly said ‘no’ to the FCC. ... It’s critically important that a Biden administration takes steps to smooth this over.”
It’s now up to Biden to pick his new commissioner (and possible chair). And in the meantime, it’s on Rosenworcel to set the agency’s agenda. There are still a lot of unknowns, but one thing is almost certain: The light-touch era is over.