With the U.S. presidential election inching closer, policy experts say a change in administrations would start another new chapter in the long debate over net neutrality.
This article is part of a two-part series considering what the FCC may look like under either a second Trump term or a Biden administration. The companion article can be found here.
If Joe Biden, the Democratic nominee for president, gets elected, policy experts expect him to choose a new agency chairman that is well known within the Beltway. The term of the current Federal Communications Commission Chairman, Republican Ajit Pai, does not end until July 2021, but FCC chairmen typically exit the commission before a new president takes office. Policy experts also expect a Biden FCC to prioritize strengthening the agency's authority to regulate broadband, undoing a Trump administration order that loosened the commission's authority over the service.
A new chairman ... or chairwoman
On the question of Biden's choice for chairman, Chris Lewis, president and CEO of public interest group Public Knowledge, says the conventional wisdom is that he would nominate someone with a lot of experience at the commission, which would start with Mignon Clyburn, former FCC commissioner and acting chair, and current Democratic FCC Commissioner Jessica Rosenworcel.
Many policy experts expect Joe Biden would name former commissioner Mignon Clyburn as FCC chair.
Source: Larry French via Getty Images
"Clyburn, having actually led as acting chair … certainly makes her eminently qualified and has the longest history of experience," he said.
Clyburn, who left the FCC in 2018, began her service at the agency in August 2009, after spending 11 years as a member of the 6th District on the Public Service Commission of South Carolina. She has described herself as a long-time champion of consumers and a defender of the public interest. During her tenure at the agency, she pushed for media ownership rules that reflect the demographics of America, affordable universal telephone and high-speed internet access, greater broadband deployment and adoption throughout the nation and transparency in regulation. In 2013, she made history as the first woman to ever head the FCC when she briefly took on the role as interim FCC chair in between the departure of former FCC head Julius Genachowski and the confirmation of his successor, Tom Wheeler.
"If [Clyburn's] interested, I would assume she would be at the top of the list, along with Rosenworcel, who served for many years, and is also very experienced," Lewis said.
Commissioner Jessica Rosenworcel has also been touted as a likely Biden pick for agency chair.
Rosenworcel first served as an FCC commissioner between 2012 and 2017. She departed the commission at the beginning of 2017 after the Senate delayed confirming her nomination for a second term. She eventually rejoined the commission in August 2017, and has continued advocating for strong net neutrality protections as well as expanded broadband service for students to help close what she calls the Homework Gap, where children do not have internet at home.
Doug Brake, director of broadband and spectrum policy at the nonpartisan public policy think tank Information Technology and Innovation Foundation, also lists Clyburn and Rosenworcel among the top contenders to get the nomination in a Biden administration.
"It kind of seems to me…if Clyburn wants it, she could probably have it," he said. "But it's not obvious that she wants it. I feel like that's kind of the more important question."
Beyond those two, Brake sees Anna Gomez, a telecom attorney who was once acting administrator of the National Telecommunications and Information Administration and served for 12 years at the FCC, and Edward Smith, a telecom attorney who has worked as a legal adviser to former FCC Chairman Tom Wheeler and held a position at NTIA, as other potential candidates.
A return of net neutrality
As for policy priorities under a Biden-led FCC, Lewis believes a top goal for any Democratic chair would be to reestablish the agency's authority over broadband in "whatever form that takes."
In 2015, a Democratic-led FCC passed an order that classified broadband as a Title II telecommunications service, giving the FCC more regulatory authority over broadband service providers like Comcast Corp., Verizon Communications Inc., AT&T Inc. and Charter Communications Inc. The 2015 order also laid out three bright-line net neutrality rules that prohibited broadband service providers from blocking or throttling legal internet traffic or prioritizing certain traffic for payment.
In 2018, under Republican leadership, the FCC repealed the 2015 order, classifying broadband as a Title I information service and eliminating the FCC's authority to impose net neutrality rules. Instead, internet service providers are required to publicly disclose if traffic is blocked, throttled or prioritized — though operators are not prohibited from those activities.
"Securing the agency's authority to protect consumers over broadband — the essential communications network of the 21st century — is a huge priority," said Lewis. "And most people link that to net neutrality, but it's also linked to other important consumer protections for broadband service, whether it's access for the disabled, closing the digital divide, and ensuring universal access for all consumers to affordable broadband," he said.
Brake also believes Democrats would act on this issue, saying he thinks a Biden administration would be under a lot of pressure to reinstitute the net neutrality rules under Title II.
A 'light-touch' approach
Blair Levin, a former FCC chief of staff who now works as policy adviser at New Street Research, said in an interview last month that while he thinks that Democrats would try to move to classify internet service providers as Title II carriers, he does not believe that the classification in and of itself matters to investors, because he believes there was no indication that the rules passed in 2015 impacted investment, margins and profits.
"It was not the classification that concerns investors, it's the potential for action after the classification," said Levin, in reference to potential actions, such as broadband rate regulation and forced unbundling, where new entrants would be able to deliver service over the existing networks of the incumbent players.
"The real question is will they [Democrats at the FCC] take the next step and go to pricing and unbundling," said Levin. "I think the answer to that is almost certainly no."
Under Title II of the Communications Act, the FCC would technically have the authority to impose rate regulation and force unbundling. But in its 2015 Open Internet order, the FCC promised to take a "light-touch" approach to the use of Title II.
"This includes no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules," the commission said.
While Lewis said whether that step will occur depends on who the commissioners are, he pointed to the two most recent Democratic FCC chairs, Wheeler and Julius Genachowski and noted that neither looked at rate regulation.
"In fact, Wheeler explicitly forebore … the agency from engaging in rate regulation," said Lewis. "So, we have yet to see a Democratic administration in favor of doing rate regulation — I think it's a bogeyman," he added.
While Brake said he does not think that there is "risk of real dramatic change in the sort of fundamentals around unbundling or rate regulation" under a Biden administration, he said he thinks there will be pressure to "set up more tools that potentially could be leveraged for those purposes down the road."
Beyond reestablishing the agency’s authority over broadband, Lewis believes that under a Democratic-led FCC, there is "always more work to do on managing spectrum policy, to ensure that innovation is preserved and there's competition in the marketplace."
Since 1994, under both Democratic and Republican leadership, the FCC has conducted auctions of licenses for spectrum, used for everything from broadcasting television to supporting wireless internet. Making spectrum available for commercial use has become particularly critical in recent years, especially as wireless operators roll out next-generation 5G service. When fully implemented, 5G will offer download speeds many times faster than 4G LTE networks, which is expected to usher in a new era of connectivity in terms of smart homes, offices and cities.