Updated January 12, 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
Net Neutrality
Trump Administration, including Section 230 of the
Net neutrality, the policy that required internet service
Communications Act of 1934, as amended (Section 230),
providers to offer equal and nondiscriminatory access to
net neutrality, and 5G. The recent confirmation of President
Donald Trump’s
online content, was adopted by the FCC under then-
nominee to join the FCC, Nathan
President Obama in 2015 and repealed by the FCC under
Simington, and Chairman Ajit Pai’s resignation on
President Trump in 2017. The issue may again be an active
Inauguration Day will leave the agency with a 2-2 split
issue for the FCC under the incoming Biden
between Democratic and Republican commissioners. The
Administration, specifically, repealing the 2017 Restoring
FCC typically has five members, with two commissioners
Internet Freedom Order that reversed the 2015 order.
and a chairperson from the President’s party. Democrats are
due to effectively take control of the Senate majority and
President-elect Biden’s net neutrality policy statement,
would typically be handling an FCC nominee of the
issued prior to the Democratic National Convention, states
incoming President’s party. Current commissioner Jessica
that his administration would “take strong enforcement
Rosenworcel has been mentioned as a strong contender for
action against broadband providers who violate net
agency chairperson.
neutrality principles through blocking, throttling, paid
Topics for Likely FCC Action
prioritization, or other measures that create artificial
scarcity and raise consumer prices.” The current
Although there are numerous issues that the new FCC may
Democratic commissioners support this position. What
consider, some issues that are currently under consideration
action the FCC takes may depend on who is confirmed by
can be expected to remain active, either to reverse current
the Senate to fill the final seat on the Commission.
FCC initiatives or to build on existing work.
Section 230
Opening the door for a reinstatement of the 2015 rules is a
2019 ruling by the D.C. Circuit Court that stated it would
Section 230 broadly protects operators of “interactive
computer services”
defer in this case to agency expertise regarding the
and their users from liability for
interpretation of the Communications Act of 1934 (see CRS
publishing, removing, or restricting access to another
person’s
Report R44954, Chevron Deference: A Primer). This would
content. Criticism of Section 230 has come from
appear to provide a path for the FCC to reinterpret the law.
both Democrats and Republicans over content moderation
If so, it could pass a declaratory ruling to reverse the 2017
decisions; both parties introduced legislation to amend
RIFO and reinstate the 2015 Order to reclassify broadband
Section 230 in the 116th Congress.
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
Some experts have cited the heightened dependency on the
initiate a rulemaking to clarify the provisions of Section
internet during the pandemic as a driver for the FCC to
230. On August 3, 2020, FCC Chairman Pai announced that
move beyond a simple reinstatement to also include a
the agency would be asking for public comment on the
prohibition on data caps, interconnection fees, and special
petition for rulemaking. The public comment period on this
rates through a new net neutrality rulemaking. Any action
proceeding closed on September 17, 2020, and on October
by the FCC could be expected to draw legal challenges.
15, 2020, Chairman Pai announced that the FCC would
move forward with the rulemaking proceeding. However,
Congress could preempt any FCC action by permanently
Chairman Pai did not include the item on the January 15,
classifying broadband as a Title II service or impose net
2021, commission meeting agenda, so no final FCC order
neutrality requirements under Section 706 of the 1996
will be promulgated prior to President-elect Biden’s
Telecommunications Act. It could also undertake a larger
inauguration. President-elect Biden has expressed interest
update to the act.
in seeing changes to Section 230 to curb misinformation,
but has stated he would prefer doing so through legislation
For additional information about net neutrality, see CRS
rather than the FCC.
Report R40616, The Net Neutrality Debate: Access to
Broadband Networks.
https://crsreports.congress.gov

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The Federal Communications Commission in the Incoming Biden Administration: Issues and New Directions
5G
develop the Rural Digital Opportunity Fund (RDOF), which
5G service deployment enjoys bipartisan support and is
allocates $20.4 billion to subsidize broadband infrastructure
likely to continue to be advanced through the FCC under
in underserved rural areas.
the incoming Biden Administration. Planned increases in
The FCC under the incoming Biden Administration may
the availability of spectrum for 5G services through
work to broaden the recipients of broadband assistance to
spectrum auctions and reallocations are expected to
urban and suburban areas. Commissioner Geoffrey Starks
continue, along with expanded support for wireless
has stated that over 18 million households lack broadband
broadband (e.g., 4G and 5G) coverage throughout the
simply because it’s too expensive. The FCC under the
country. Given recent disputes over spectrum reallocation,
incoming Biden Administration may focus additional
some observers believe that the FCC under the incoming
attention on issues of affordability affecting the digital
Biden Administration may focus more attention on policies
divide.
aimed at resolving interagency differences and interference
concerns over spectrum use. The FCC under the incoming
The FCC under the incoming Biden Administration may
Biden Administration will likely continue an emphasis on
look to update some other programs that assist the
5G network security and protection against cyberattacks, as
disadvantaged, such as the E-Rate program that provides
well as maintaining a strong posture towards China and
broadband access to schools and libraries at a discount, and
domestically may examine the impact of policies
the Lifeline program that provides telecommunications
streamlining infrastructure deployment, and the potential
services to certain low-income populations.
adverse environmental and health impacts of 5G.
For additional information about the digital divide,
The incoming Biden Administration, including the FCC, is
broadband deployment, and the Universal Service Fund,
expected to implement policies to restrict and remove
including the E-Rate, Lifeline, and RDOF, see CRS Report
Huawei and ZTE equipment from U.S. telecommunications
R46613, The Digital Divide: What Is It, Where Is It, and
networks. This policy would limit the use of U.S. grants
Federal Assistance Programs; CRS Report R46501, Rural
funds for such equipment, and promote open-sourced, open
Digital Opportunity Fund: Requirements and Selected
architecture approaches for 5G networks to counter the
Policy Issues; and CRS In Focus IF11520, The Universal
dominance of Chinese firms in the global
Service Fund and COVID-19: The FCC and Industry
telecommunications market. It is expected to continue
Response.
working with the interagency “Team Telecom” and the
Other Topics
Committee on Foreign Investment in the United States
(CFIUS) on the security of the U.S. telecommunications
Additional topics, for which President-elect Biden has not
sector, and continue streamlining the application and
yet provided specific plans, may also be addressed by the
evaluation of foreign investment and participation in it.
FCC under the incoming Administration.
Team Telecom evaluates foreign investment or
Broadband Privacy
participation in U.S. telecommunications companies, while
In early 2017, Congress and the Trump Administration used
CFIUS may review foreign investment in and acquisition of
the Congressional Review Act to overturn strict privacy
U.S. companies in any industry, including
rules for broadband internet access providers promulgated
telecommunications. Additionally, the FCC may remain
by the FCC under then-President Obama. Without
focused on advancing 5G technologies through its 5G Fund
congressional action, the FCC is prohibited from adopting
for Rural America.
any new rules on the issue.
For additional information about 5G, see CRS Report
Agency Transparency and Process Reform
R45485, Fifth-Generation (5G) Telecommunications
Chairman Pai implemented process reforms intended to
Technologies: Issues for Congress.
increase transparency of agency actions. For example, one
Digital Divide
reform resulted in more votes being taken on rulemakings
As part of his rural economic development strategy,
rather than being decided at the bureau or office level.
President-elect Biden has proposed an investment of $20
These reforms are widely expected to continue at the FCC
billion to deploy broadband access to communities where it
under the incoming Biden Administration.
is currently unavailable. He has also called for partnering
Media Mergers, Acquisitions, and Ownership
with municipal utilities to deploy broadband to rural
How the FCC under the incoming Biden Administration
America. His development strategy states
may scrutinize media mergers, acquisitions, and ownership
High-speed broadband is essential in the 21st
has been a topic of debate. While some observers believe it
may engage in closer examination of public interest issues
century economy. At a time when so many jobs and
than under the Trump Administration, others have stated
businesses could be located anywhere, high-speed
that the change of administration is unlikely, on its own, to
internet access should be a great economic
affect such activity.
equalizer for rural America, not another economic
disadvantage.
Enforcement
The FCC under incoming President Biden may provide its
The incoming Biden Administration may build on the
Enforcement Bureau with the operational autonomy it had
Trump Administration’s work in this area. Addressing the
during the Obama era. During the Trump administration,
digital divide is an issue that both parties have recognized
the FCC required a vote by the full Commission to approve
as an important goal. For example, during the Trump
penalties such as forfeitures.
Administration, the White House worked with the FCC to
https://crsreports.congress.gov

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

IF11720
Patricia Moloney Figliola, Specialist in Internet and
Telecommunications Policy


Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
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https://crsreports.congress.gov | IF11720 · VERSION 3 · UPDATED

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