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Biden’s FCC Picks Are Prelude to Democratic Net Neutrality Push

Oct. 26, 2021, 7:28 PM

President Joe Biden‘s plan to nominate Jessica Rosenworcel to lead the Federal Communications Commission and Gigi Sohn to another agency seat sets the stage for a Democratic effort to restore net neutrality rules.

With a Democratic majority in place, restoring net neutrality rules governing how internet service providers like AT&T Inc. and Comcast Corp. manage their networks is expected to be at the top of Democrats’ wish list.

Democrats likely are unable to move to reimpose the rules until the Senate acts on Biden’s picks, however, because the FCC currently has two Democratic and two Republican members. For now, Rosenworcel can only remain at the agency until the end of the congressional session unless the Senate confirms her to another term.

“I am deeply humbled to be designated as Chair of the Federal Communications Commission by President Biden,” Rosenworcel said in a statement. “It is an honor to work with my colleagues on the Commission and the agency’s talented staff to ensure that no matter who you are or where you live, everyone has the connections they need to live, work, and learn in the digital age.”

Sohn in a tweet said she was “deeply honored to be nominated” by Biden and will “work to fulfill his goal of ensuring that every household in the US has robust broadband Internet.”

Rosenworcel, Sohn, and fellow Democrat Geoffrey Starks would make up a Democratic FCC majority for the first time since Biden took office. Rosenworcel would be the first woman to chair the FCC permanently, while Sohn would be the first openly LGBTIQ+ commissioner, according to the White House.

Biden’s announcement “comes at just the right time, with more work to do to improve our broadband deployment, spectrum management, and consumer protections,” Senate Commerce, Science, and Transportation Committee chair Maria Cantwell (D-Wash.) said, adding, “I look forward to swiftly considering these nominations before the end of the year.”

Andrew Jay Schwartzman, a senior counselor at the Benton Institute for Broadband & Society, also praised Biden’s picks.

“As Gigi’s colleague for a decade, I may be accused of being biased, but that proximity also gives me confidence that the team of Chair Rosenworcel and Commissioners Starks and Sohn are likely to make major advances in promoting widespread and affordable wireless and wireline broadband deployment, media diversity and an open internet,” Schwartzman said.

Schwartzman said he expects net neutrality to be “considered in the first few months after confirmation.”

Rate Regulation

Internet service providers expect FCC Democrats to pursue net neutrality rules under Title II of the Communications Act, an industry source said.

If Rosenworcel makes clear she won’t also pursue rate regulations under Title II, the source said, ISPs may not bother to fight back as hard against reclassification, especially after courts have ruled the FCC has the authority to go back and forth on net neutrality depending on which party is in power.

Proponents say the rules are crucial to prevent internet service providers from slowing down or blocking online services for consumers. Under former Democratic FCC chair Tom Wheeler, ISPs were classified as common carriers under Title II as part of the imposition of net neutrality rules. The Republican-controlled agency rolled back the rules early in the Trump administration.

“Hopefully, they put it back on track,” Wheeler said of the net neutrality rules. “I think rate regulation is inimical to the rapid restoration of net neutrality. Anything that involves rate regulation will be a long drawn-out process,” he added.

Biden in a July 9 executive order called for Title II reclassification as well as reviving broadband consumer labels with pricing and performance information and ending exclusive deals between landlords and internet service providers that limit tenants’ choice.

Several states have either adopted or are in the process of adopting net neutrality rules. In California, internet service providers are arguing at the U.S. Court of Appeals for the Ninth Circuit the state law is preempted by the Trump administration’s repeal of net neutrality rules.

The state laws in place or underway will add a layer of complexity to the FCC’s goal of restoring a federal net neutrality law. Agency Democrats will need to be careful they don’t set a precedent of preempting state laws that a future Republican-controlled FCC can leverage, former GOP FCC commissioner Robert McDowell said.

Rosenworcel and Sohn, Wheeler’s former counselor, have diverged on at least one policy issue.

Wheeler during his tenure proposed a set-top box proceeding that aimed to help consumers avoid having to rent boxes for pay TV. Then-commissioner Rosenworcel opposed the proceeding in 2016.

NTIA Pick

The White House also announced Biden intends to nominate Alan Davidson, who has been Mozilla’s vice president of global policy, trust, and security since September 2018, to lead the Commerce Department’s National Telecommunications and Information Administration.

Davidson will be tasked with coordinating spectrum policy on behalf of the White House with the FCC, Justice Department, and other agencies. Sohn was a technology policy fellow at Mozilla until November 2018, according to her LinkedIn page.

Industry groups in press releases on Tuesday welcomed the trio’s selections.

CTIA, a trade association for wireless carriers, lauded Rosenworcel for “guiding the FCC through the continued global pandemic and launching innovative programs to help keep Americans connected during this challenging time.”

USTelecom, a broadband trade association, said Sohn and Rosenworcel “understand the power of broadband to make real progress in advancing social justice, healthcare, education, and sustained economic growth and opportunity.”

To contact the reporter on this story: Maria Curi at mcuri@bloombergindustry.com

To contact the editors responsible for this story: Kibkabe Araya at karaya@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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