January 5, 2021
The Federal Communications Commission in the Incoming
Biden Administration: Issues and New Directions
Introduction
For additional information about Section 230, see CRS
The Federal Communications Commission (FCC) in the
Legal Sidebar LSB10484, UPDATE: Section 230 and the
incoming Biden Administration may take different
Executive Order on Preventing Online Censorship.
positions on several key topics than the FCC under the
Trump Administration, including Section 230 of the
Net Neutrality
Communications Act of 1934, as amended (Section 230),
Net neutrality, the policy that required internet service
net neutrality, and 5G. The recent confirmation of President
providers to offer equal and non-discriminatory access to
Donald Trump’s nominee to join the FCC, Nathan
online content, was adopted by the FCC under then-
Simington, and Chairman Ajit Pai’s resignation on
President Obama in 2015 and repealed by the FCC under
Inauguration Day will leave the agency with a 2-2 split
President Trump in 2017. The issue may again be an active
between Democratic and Republican commissioners. The
issue for the FCC under the incoming Biden
FCC typically has five members, with two commissioners
Administration, specifically, repealing the 2017 Restoring
and chairperson from the president’s party. With the
Internet Freedom Order (RIFO). The RIFO reversed the
balance of the Senate dependent on the outcome of the
requirement for net neutrality required by the 2015 order.
Georgia runoff on January 5, 2021, it is unclear how the
Senate might proceed on confirming a Biden nominee.
President-elect Biden’s net neutrality policy statement,
Current commissioner Jessica Rosenworcel has been
issued prior to the Democratic National Convention, states
mentioned as a strong contender to be named chairperson
that his administration would “take strong enforcement
by President-elect Joseph Biden.
action against broadband providers who violate net
neutrality principles through blocking, throttling, paid
Topics for Likely FCC Action
prioritization, or other measures that create artificial
Although there are numerous issues that the new FCC may
scarcity and raise consumer prices.” The current
consider, some issues that are currently under consideration
Democratic commissioners support this position. What
can be expected to remain active, either to reverse current
action the FCC takes may depend on who is confirmed by
FCC initiatives or to build on existing work.
the Senate to fill the final seat on the Commission.
Section 230
Opening the door for a reinstatement of the 2015 rules is a
Section 230 broadly protects operators of “interactive
2019 ruling by the D.C. Circuit Court that stated it would
computer services” and their users from liability for
defer in this case to agency expertise regarding the
publishing, removing, or restricting access to another
interpretation of the Communications Act of 1934 (see CRS
person’s content. Criticism of Section 230 has come from
Report R44954, Chevron Deference: A Primer). This would
both Democrats and Republicans over content moderation
appear to provide a path for the FCC to reinterpret the law.
decisions; both parties introduced legislation to amend
If so, it could pass a declaratory ruling to reverse the 2017
Section 230 in the 116th Congress.
RIFO and reinstate the 2015 Order to reclassify broadband
providers from Title I to Title II services. Title I
On May 28, 2020, President Trump issued an “Executive
information services are subject to fewer regulations than
Order on Preventing Online Censorship.” The order
Title II common carrier telecommunications services.
required the Secretary of Commerce to ask the FCC to
initiate a rulemaking to clarify the provisions of Section
Some experts have cited the heightened dependency on the
230. On August 3, 2020, FCC Chairman Pai announced that
internet during the pandemic as a driver for the FCC to
the agency would be asking for public comment on the
move beyond a simple reinstatement to also include a
petition for rulemaking. The public comment period on this
prohibition on data caps, interconnection fees, and special
proceeding closed on September 17, 2020, and on October
rates through a new net neutrality rulemaking. Any action
15, 2020, Chairman Pai announced that the FCC would
by the FCC could be expected to draw legal challenges.
move forward with the rulemaking proceeding.
Congress could preempt any FCC action by permanently
It is unlikely that a final FCC order would be promulgated
classifying broadband as a Title II service or impose net
prior to President-elect Biden’s inauguration and, while he
neutrality requirements under Section 706 of the 1996
has expressed interest in seeing changes to Section 230 to
Telecommunications Act. It could also undertake a larger
curb misinformation, he has stated that he would prefer
update to the act.
doing so through legislation rather than through the FCC.
https://crsreports.congress.gov

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The Federal Communications Commission in the Incoming Biden Administration: Issues and New Directions
For additional information about net neutrality, see CRS
urban and suburban areas. Commissioner Geoffrey Starks
Report R40616, The Net Neutrality Debate: Access to
has stated that over 18 million households lack broadband
Broadband Networks.
simply because it’s too expensive. The FCC under the
incoming Biden Administration may focus additional
5G Spectrum Availability, Service Deployment, and
attention on issues of affordability affecting the digital
Security
divide.
Promoting 5G spectrum availability and service deployment
has been largely noncontroversial and enjoys bipartisan
The FCC under the incoming Biden Administration may
support, which is likely to continue at the FCC under the
look to update some other programs that assist the
incoming Biden Administration. Planned increases in the
disadvantaged, such as the E-Rate program that provides
availability of spectrum for 5G services through spectrum
broadband access to schools and libraries at a discount, and
auctions and reallocations are generally expected to
the Lifeline program that provides telecommunications
continue, along with reducing barriers to 5G infrastructure
services to certain low-income populations.
deployment to provide expanded coverage throughout the
country.
For additional information about the digital divide,
broadband deployment, and the Universal Service Fund,
However, some observers believe that the FCC under the
including the E-Rate, Lifeline, and RDOF, see CRS Report
incoming Biden Administration may focus more attention
R46613, The Digital Divide: What Is It, Where Is It, and
on potential adverse environmental and health impacts of
Federal Assistance Programs; CRS Report R46501, Rural
5G, and may not be inclined to issue broad preemptions of
Digital Opportunity Fund: Requirements and Selected
state and local governments’ authority to impose aesthetic
Policy Issues; and CRS In Focus IF11520, The Universal
requirements on network facilities.
Service Fund and COVID-19: The FCC and Industry
Response.
The FCC under the incoming Biden Administration may
continue an emphasis on 5G network security and
Other Topics
protection against cyberattacks, as well as maintaining a
Additional topics, for which President-elect Biden has not
strong posture towards China. It may continue to work with
yet provided specific plans, may also be addressed by the
the interagency “Team Telecom” and the Committee on
FCC under the incoming Administration.
Foreign Investment in the United States (CFIUS) on the
security of the domestic telecommunications sector. Team
Broadband Privacy
Telecom evaluates foreign investment or participation in
In early 2017, Congress and the Trump Administration used
U.S. telecommunications companies, while CFIUS may
the Congressional Review Act to overturn strict privacy
review foreign investment in and acquisition of U.S.
rules for broadband internet access providers promulgated
companies in any industry, including telecommunications.
by the FCC under then-President Obama. Without
congressional action, the FCC is prohibited from adopting
For additional information about 5G, see CRS Report
any new rules on the issue.
R45485, Fifth-Generation (5G) Telecommunications
Technologies: Issues for Congress.
Agency Transparency and Process Reform
Chairman Pai implemented process reforms intended to
Digital Divide
increase transparency of agency actions. For example, one
As part of his rural economic development strategy,
reform resulted in more votes being taken on rulemakings
President-elect Biden has proposed an investment of $20
rather than being decided at the bureau or office level.
billion to deploy broadband access to communities where it
These reforms are widely expected to continue at the FCC
is currently unavailable. He has also called for partnering
under the incoming Biden Administration.
with municipal utilities to deploy broadband to rural
America. His development strategy states:
Media Mergers, Acquisitions, and Ownership
How the FCC under the incoming Biden Administration
High-speed broadband is essential in the 21st
may scrutinize media mergers, acquisitions, and ownership
century economy. At a time when so many jobs and
has been a topic of debate. While some observers believe it
businesses could be located anywhere, high-speed
may engage in closer examination of public interest issues
internet access should be a great economic
than under the Trump Administration, others have stated
equalizer for rural America, not another economic
that the change of administration is unlikely, on its own, to
disadvantage.
affect such activity.
The incoming Biden Administration may build on the
Enforcement
Trump Administration’s work in this area. Addressing the
The FCC under incoming President Biden may provide its
digital divide is an issue that both parties have recognized
Enforcement Bureau with the operational autonomy it had
as an important goal. For example, during the Trump
during the Obama era. During the Trump administration,
Administration, the White House worked with the FCC to
the FCC required a vote by the full Commission to approve
develop the Rural Digital Opportunity Fund (RDOF), which
penalties such as forfeitures.
allocates $20.4 billion to subsidize broadband infrastructure
in underserved rural areas.
Patricia Moloney Figliola, Specialist in Internet and
The FCC under the incoming Biden Administration may
Telecommunications Policy
work to broaden the recipients of broadband assistance to
https://crsreports.congress.gov

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The Federal Communications Commission in the Incoming Biden Administration: Issues and New Directions

IF11720


Disclaimer
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https://crsreports.congress.gov | IF11720 · VERSION 1 · NEW

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