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FCC vacancy must be filled to execute White House broadband plans — experts

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FCC vacancy must be filled to execute White House broadband plans — experts

President Joe Biden has big ideas about broadband policy. But to enact them, policy experts say he must first fill some key agency roles.

As part of a sweeping executive order aimed at "promoting competition in the American economy," Biden called on federal agencies to crack down on Big Tech and tackle both competition and price transparency among broadband providers. The order notably asks the Federal Communications Commission to reinstate net neutrality protections alongside other measures to make broadband pricing more transparent and affordable.

Policy experts, however, noted the immediate impact of the order will be limited, especially at the FCC — an independent agency that is deadlocked with a 2-2 partisan divide.

"The FCC cannot be directed by the White House," S. Derek Turner, research director at the media advocacy group Free Press, said in an interview. As an independent agency, the FCC is not headed by an administration cabinet secretary, and its programs and policy implementation are overseen by Congress.

"All [the White House] can do is interpret the law as they see it and ask the FCC to use their regulatory authority based on the law and the facts," Turner said.

An even bigger obstacle, however, is the ongoing vacant seat at the five-seat commission. Biden will have to fill the open seat with a Democrat and get that person confirmed by the Senate before the FCC can tackle some of the executive order's biggest bullet points, including restoring net neutrality protections. The White House has yet to name a nominee for the role.

Jim Dunstan, first general counsel of the free-market-focused tech policy group TechFreedom, said the executive order could be a sign that Biden is close to picking a new FCC chair and filling the vacant seat. Democratic Commissioner Jessica Rosenworcel has been serving as acting chair since January.

"We're in July now — seven months in — and there's still no chair," Dunstan said. "I don't think this executive order would have been issued unless the White House is ready to make that announcement."

Rosenworcel issued a statement July 9 supporting Biden's order, saying she welcomed the effort from the White House to "enhance competition in the American economy and in the nation's communications sector."

Democrat Commissioner Geoffrey Starks also cheered the executive actions in a statement, saying millions of Americans without reliable internet access are counting on the FCC to fight for a more "vibrant and inclusive" broadband marketplace.

But in a sign of the political stalemate at the commission, both Republican commissioners, Brendan Carr and Nathan Simington, expressed concerns with the order, especially in regards to its suggestion that the FCC reimpose net neutrality rules.

Carr said the order "embraces a backwards-looking, Obama-era approach to Internet regulation."

Simington said he thought net neutrality protections would best be tackled by Congress.

In 2015, a Democratic-led FCC passed an order that classified broadband as a Title II telecommunications service, giving the agency more regulatory authority over broadband service providers like Comcast Corp., Verizon Communications Inc., AT&T Inc. and Charter Communications Inc. Because of the Title II classification, the FCC had enough regulatory authority under the law to impose 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 enforce net neutrality protections. The FCC has a transparency rule that requires internet service providers to disclose publicly when traffic is blocked or throttled or prioritized.

"Net neutrality and the monopoly-era Title II law have long been inappropriately conflated. In other countries with net neutrality laws, net neutrality principles are specified in legislation, not imported from regulatory regimes for telephone monopolies," Simington said.

The Title II classification is controversial and unpopular among many in the broadband industry because it not only gives the FCC the regulatory authority to impose net neutrality rules, but it also technically enables the agency to regulate broadband rates. Under former President Barack Obama, the FCC — including Rosenworcel — said the agency would forbear from controlling prices.

Turner said that once the Title II classification is restored, the commission can then begin its work on other actions contained in Biden's executive order, such as requiring broadband providers to report price and subscription rates to the commission in an effort to increase price transparency.

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