A change in administration usually means big policy changes for the U.S. Federal Communications Commission, but experts warn President-elect Joe Biden's commission faces the real risk of partisan gridlock.
This is Part 2 of a two-part series on how the Biden administration could change regulation in the technology and telecom sectors. Part 1 can be found here: Biden administration could crack down on privacy, reform antitrust approach
The five-person commission is currently comprised of a 3-2 Republican majority. Typically, the agency has two commissioners from each party, plus a chairman who is of the same political persuasion as the president. But that may not be the case for a Biden FCC, at least not initially, according to industry experts, which could stifle any partisan rulemakings.
An even split
Though Republicans currently hold the majority on the commission, current Chairman Ajit Pai has said he is leaving in January 2021 and Republican Commissioner Michael O'Rielly's term expires at the end of the year.
Given this, Republicans currently face the prospect of only having one member on the commission in January if O'Rielly's seat is not filled by the end of the year. But the Republican-controlled Senate is working quickly to ensure that scenario does not come to pass, advancing the nomination of President Donald Trump's nominee, Nathan Simington, to the full Senate earlier this month. A Senate vote on his confirmation is expected as soon as this week.
If Simington is confirmed, he would fill O'Rielly's soon-to-be-vacant seat and Biden's administration would begin with a 2-2 split on the commission. While Biden will nominate a Democratic chair, policy experts believe that if Republicans maintain control of the Senate, the chamber could delay acting on the nomination, meaning the 2-2 split could remain in place for months, if not longer.
"Simington's confirmation would likely deadlock the Commission indefinitely," the digital activist group Fight for the Future said in a Dec. 6 news release.
Such a scenario would prevent Democrats from acting on partisan items, such as restoring net neutrality protections, until the deadlock is broken.
Blair Levin, a former FCC chief of staff who now works as policy advisor at New Street Research, said in a Dec. 7 note to investors that "the effort to confirm Simington is unlikely to represent an effort to merely delay a Democratic majority by only a few months and may lead to the Democrats never controlling the agency."
Levin went on to say that such a deadlock "could cause numerous delays in policy decisions, more reliance on delegated bureau decisions and enforcement actions, uncertainty about mergers and significantly greater political gamesmanship."
The E-rate debate
One issue that has left current agency members divided, especially amid the pandemic, is whether the FCC can use money from the agency's E-rate program to provide connectivity to students outside of the classroom who do not have internet access. The E-rate program aims to make telecommunications and information services more affordable for schools and libraries.
Pai argued in testimony in May that existing law restricts the FCC's ability to support service outside of physical classrooms.
However, both Democratic commissioners Jessica Rosenworcel and Geoffrey Starks have implored the agency to use the program to offer broadband connections, including hotspots, to students needing broadband for distance learning.
Doug Brake, director of broadband and spectrum policy at the nonpartisan public policy think tank Information Technology and Innovation Foundation, sees an opportunity early in the Biden administration to expand the E-rate program to provide connectivity for students who are learning remotely but who do not currently have broadband at home.
"I think that that'll be an early initiative of a Biden FCC," he said, calling it a "minor change."
A bigger hurdle for a Biden FCC, especially one divided evenly along party lines, would be tackling net neutrality.
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.
Under normal circumstances, reinstating the 2015 net neutrality order would be a top priority for a Biden FCC. But it would be practically impossible to accomplish with a 2-2 split commission.
Room for compromise
That is not to say there will be no movement on telecom policy next year.
In particular, Brake sees an opportunity for Congress to act on rural broadband funding. While he notes that the FCC has existing subsidies under its Universal Service Fund, which helps ensure consumers in rural and other high-cost areas have access to communications services at affordable prices, he sees bipartisan consensus that lawmakers need to do more.
"I think there's pretty widespread political agreement that something larger than that is due, you know, especially during the pandemic, where we're at risk of the sort of existing rural-urban digital divide growing ever starker and more harmful," he said in an interview. "So, I think that there's a recognition that there's a real possibility for an infrastructure package, that includes broadband coming from Congress," he added.
Brake noted he could see a focus of a Biden FCC being on other aspects of the digital divide that the pandemic has shined a light on, such as affordability and impediments towards broadband adoption, beyond infrastructure challenges.