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

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

Updated January 21, 2021
The Federal Communications Commission in the Biden
Administration: Issues and New Directions
Introduction
under then-President Trump in 2017. The issue may again
The Federal Communications Commission (FCC) in the
be an active issue for the FCC under the Biden
new Biden Administration may take different positions on
Administration, specifically, repealing the 2017 Restoring
several key topics than the FCC under the Trump
Internet Freedom Order that reversed the 2015 order.
Administration, including Section 230 of the
President Biden’s net neutrality policy statement, issued
Communications Act of 1934, as amended (Section 230),
prior to the Democratic National Convention, states that his
net neutrality, and 5G. The recent confirmation of then-
President Donald Trump’s
administration plans to “take strong enforcement action
nominee to join the FCC,
against broadband providers who violate net neutrality
Nathan Simington, and Chairman Ajit Pai’s resignation on
principles through blocking, throttling, paid prioritization,
Inauguration Day has left the agency with a 2-2 split
or other measures that create artificial scarcity and raise
between Democratic and Republican commissioners. The
consumer prices.” The current Democratic commissioners
FCC typically has five members, with two commissioners
support this position.
and a chairperson from the President’s party. Democrats
have effectively taken control of the Senate majority and
Opening the door for a reinstatement of the 2015 rules is a
can be expected to confirm President Joe Biden’s nominee
2019 ruling by the D.C. Circuit Court that stated it would
for chairperson. On January 21, 2021, President Biden
defer in this case to agency expertise regarding the
appointed current commissioner Jessica Rosenworcel as
interpretation of the Communications Act of 1934 (see CRS
acting chairperson and she is seen as a possible nominee for
Report R44954, Chevron Deference: A Primer). This would
the position.
appear to provide a path for the FCC to reinterpret the law.
Topics for Likely FCC Action
If so, it could pass a declaratory ruling to reverse the 2017
RIFO and reinstate the 2015 Order to reclassify broadband
Although there are numerous issues that the new FCC may
providers from Title I to Title II services. Title I
consider, some issues that are currently under consideration
information services are subject to fewer regulations than
can be expected to remain active, either to reverse current
Title II common carrier telecommunications services.
FCC initiatives or to build on existing work.
Section 230
Some experts have cited the heightened dependency on the
internet during the pandemic as a driver for the FCC to
Section 230 broadly protects operators of “interactive
computer services”
move beyond a simple reinstatement to also include a
and their users from liability for
prohibition on data caps, interconnection fees, and special
publishing, removing, or restricting access to another
person’s
rates through a new net neutrality rulemaking. Any action
content. Criticism of Section 230 has come from
by the FCC could be expected to draw legal challenges.
both Democrats and Republicans over content moderation
decisions; both parties introduced legislation to amend
Congress could preempt any FCC action by permanently
Section 230 in the 116th Congress.
classifying broadband as a Title II service or impose net
neutrality requirements under Section 706 of the 1996
On May 28, 2020, then-President Trump issued an
“Executive Order on Preventing Online Censorship.” The
Telecommunications Act. It could also undertake a larger
update to the act.
order required the Secretary of Commerce to ask the FCC
to initiate a rulemaking to clarify the provisions of Section
For additional information about net neutrality, see CRS
230. Although the FCC began a proceeding on August 3,
Report R40616, The Net Neutrality Debate: Access to
2020, it was not finalized prior to President Biden’s
Broadband Networks.
inauguration. President Biden has expressed interest in
5G
seeing changes to Section 230 to curb misinformation, but
has stated he would prefer doing so through legislation
5G service deployment enjoys bipartisan support and is
rather than the FCC.
likely to continue to be advanced through the FCC under
the Biden Administration. Planned increases in the
For additional information about Section 230, see CRS
availability of spectrum for 5G services through spectrum
Legal Sidebar LSB10484, UPDATE: Section 230 and the
auctions and reallocations are expected to continue, along
Executive Order on Preventing Online Censorship.
with expanded support for wireless broadband (e.g., 4G and
Net Neutrality
5G) coverage throughout the country. Given recent disputes
over spectrum reallocation, some observers believe that the
Net neutrality, the policy that required internet service
FCC under the Biden Administration may focus more
providers to offer equal and nondiscriminatory access to
attention on policies aimed at resolving interagency
online content, was adopted by the FCC under then-
differences and interference concerns over spectrum use.
President Barack Obama in 2015 and repealed by the FCC
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The Federal Communications Commission in the Biden Administration: Issues and New Directions
The FCC under the Biden Administration will likely
because it’s too expensive. The FCC under the Biden
continue an emphasis on 5G network security and
Administration may focus additional attention on issues of
protection against cyberattacks, as well as maintaining a
affordability affecting the digital divide.
strong posture towards China and domestically may
The FCC under the Biden Administration may look to
examine the impact of policies streamlining infrastructure
update some other programs that assist the disadvantaged,
deployment, and the potential adverse environmental and
such as the E-Rate program that provides broadband access
health impacts of 5G.
to schools and libraries at a discount, and the Lifeline
The Biden Administration, including the FCC, is expected
program that provides telecommunications services to
to implement policies to restrict and remove Huawei and
certain low-income populations.
ZTE equipment from U.S. telecommunications networks.
For additional information about the digital divide,
This policy would limit the use of U.S. grants funds for
broadband deployment, and the Universal Service Fund,
such equipment, and promote open-sourced, open
including the E-Rate, Lifeline, and RDOF, see CRS Report
architecture approaches for 5G networks to counter the
R46613, The Digital Divide: What Is It, Where Is It, and
dominance of Chinese firms in the global
Federal Assistance Programs; CRS Report R46501, Rural
telecommunications market. It is expected to continue
working with the interagency “Team Telecom” and the
Digital Opportunity Fund: Requirements and Selected
Policy Issues; and CRS In Focus IF11520, The Universal
Committee on Foreign Investment in the United States
Service Fund and COVID-19: The FCC and Industry
(CFIUS) on the security of the U.S. telecommunications
Response.
sector, and continue streamlining the application and
evaluation of foreign investment and participation in it.
Other Topics
Team Telecom evaluates foreign investment or
Additional topics, for which President Biden has not yet
participation in U.S. telecommunications companies, while
provided specific plans, may also be addressed by the FCC
CFIUS may review foreign investment in and acquisition of
under his Administration.
U.S. companies in any industry, including
Broadband Privacy
telecommunications. Additionally, the FCC may remain
focused on advancing 5G technologies through its 5G Fund
In early 2017, Congress and the Trump Administration used
for Rural America.
the Congressional Review Act to overturn strict privacy
rules for broadband internet access providers promulgated
For additional information about 5G, see CRS Report
by the FCC under then-President Obama. Without
R45485, Fifth-Generation (5G) Telecommunications
congressional action, the FCC is prohibited from adopting
Technologies: Issues for Congress.
any new rules on the issue.
Digital Divide
Agency Transparency and Process Reform
As part of his rural economic development strategy,
Then-Chairman Pai implemented process reforms intended
President-elect Biden has proposed an investment of $20
to increase transparency of agency actions. For example,
billion to deploy broadband access to communities where it
one reform resulted in more votes being taken on
is currently unavailable. He has also called for partnering
rulemakings rather than being decided at the bureau or
with municipal utilities to deploy broadband to rural
office level. These reforms are widely expected to continue
America. His development strategy states
at the FCC under the Biden Administration.
High-speed broadband is essential in the 21st
Media Mergers, Acquisitions, and Ownership
century economy. At a time when so many jobs and
How the FCC under the Biden Administration may
businesses could be located anywhere, high-speed
scrutinize media mergers, acquisitions, and ownership has
internet access should be a great economic
been a topic of debate. While some observers believe it may
equalizer for rural America, not another economic
engage in closer examination of public interest issues than
disadvantage.
under the Trump Administration, others have stated that the
change of administration is unlikely, on its own, to affect
The Biden Administration may build on the previous
such activity.
administration’s work in this area. Addressing the digital
divide is an issue that both parties have recognized as an
Enforcement
important goal. For example, during the Trump
The FCC under the Biden Administration may provide its
Administration, the White House worked with the FCC to
Enforcement Bureau with the operational autonomy it had
develop the Rural Digital Opportunity Fund (RDOF), which
during the Obama era. During the Trump administration,
allocated $20.4 billion to subsidize broadband infrastructure
the FCC required a vote by the full Commission to approve
in underserved rural areas.
penalties such as forfeitures.
The FCC under the Biden Administration may work to
Patricia Moloney Figliola, Specialist in Internet and
broaden the recipients of broadband assistance to urban and
Telecommunications Policy
suburban areas. Commissioner Geoffrey Starks has stated
that over 18 million households lack broadband simply
IF11720

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

Disclaimer
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https://crsreports.congress.gov | IF11720 · VERSION 4 · UPDATED