TR Daily FCC Likely to Revisit Net Neutrality Under Democratic Majority
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Monday, November 9, 2020

FCC Likely to Revisit Net Neutrality Under Democratic Majority

A Democratic-run FCC seems likely to revisit the agency’s net neutrality rules but would be unlikely to grant a petition for rulemaking concerning section 230 of the Communications Decency Act, according to telecom policy observers.

Which party will control the Senate is still unknown with several races yet to be decided, including two runoffs scheduled for January in Georgia.

Democratic control of the White House "would increase the odds of a telecom bill that resolves the [broadband Internet access service, or BIAS,] classification issue, though it is still an uphill challenge," Blair Levin, an adviser to New Street Research LLP, said in one of two recent notes on the impact of the election.

A Democratic-run FCC is "likely to reclassify carriers as subject to Title II but [take] no further action on price regulation or unbundling," Mr. Levin said. "Whatever happens will face another court challenge. Having said that, we previously said with a Democratic Senate, the risks of someone from the [Sen. Bernie] Sanders [I., Vt.]/[Sen. Elizabeth] Warren [D., Mass.] wing of the party being appointed FCC chair and using a Title II reclassification to pursue price regulation and/or unbundling were in the very low single digits. A [Senate Majority Leader Mitch] McConnell [R., Ky.] lead Senate reduces those odds further."

Just last month the FCC’s two Democratic Commissioners opposed an agency decision to uphold its 2017 order reclassifying BIAS as an information service (TR Daily, Oct. 27), and in absence of a legislative resolution.

Among other shifts in direction on broadband and Internet policy at the FCC that might be expected with a Democratic Chair and majority are a friendlier environment for competitive entrants and a broader view of the agency’s statutory authority to address broadband adoption and affordability issues, Mr. Levin suggested.

Commission Democrats have resisted President Trump’s proposal—delivered through a petition from the National Telecommunications and Information Administration that Chairman Ajit Pai has said the agency will act on—to interpret section 230 of the CDA in a way that would reduce the breadth of social media platform’s immunity from liability for efforts to police third-party content.

"We think instead, a Democratic FCC simply signals that Congress should address concerns about the law, something Biden himself has advocated," Mr. Levin said.

Mr. Levin said a Democratic-run White House and Republican-led Senate likely won’t "significantly affect Administration telecom action, which will largely be a function of the FCC, except that the Republican Senate will likely make it harder to reform the universal service funding (USF) system contribution factor," Mr. Levin also said. "That is a negative for industry, as the current system is strained by a revenue base that is shrinking and demand that is growing. In the same vein, it will be more difficult to get a big infrastructure package which could have replaced some of those USF dollars and otherwise helped ease the financial costs of other deployments that could be positive for industry. On the big tech side, it may mean that comprehensive antitrust reform for the information age is less likely, leading to pressure to achieve similar goals through litigation, which itself creates uncertainty for longer periods."

The Biden administration’s transition website emphasizes the need for "universal broadband" deployment.

The Information Technology Industry Council noted in an analysis on what the tech industry can expect from a Biden administration that "during the campaign President-elect Biden indicated support for bringing broadband to every American household and to help close the digital divide in underserved and rural communities. The campaign did not, however, offer specifics about this objective, including the exact approach and implementation, or how a Biden-Harris Administration would work with industry on broadband deployment. The agenda does indicate the President-elect’s support for making regulatory changes that promote expansion and competition, providing billions to fund broadband expansion, and providing access to federal rights-of-way. The plan also indicates the Biden-Harris Administration will pursue universal access to connectivity through traditional broadband and 5G technology."

Meanwhile, a Democratic-run FCC "may not reverse Pai preemption of cities but is likely to move forward with issues involving cities on a more collaborative basis," Mr. Levin said.

The FCC under Democratic leadership also is likely to put "a slightly greater emphasis on unlicensed spectrum," Mr. Levin said.

Hogan Lovells partner Trey Hanbury said during a recent press briefing (TR Daily, Oct. 29) that Democrats are more likely to want to retain the FCC’s spectrum screen, and Mr. Levin said they are more likely to back spectrum caps.

Messrs. Hanbury and Levin also said that the deployment of a nationalized 5G network is less likely to occur under Democrats.

Ari Fitzgerald, head of the communications, internet, and media practice at Hogan Lovells, noted during the press briefing that Democrats are more supportive of municipal broadband networks and services.

Mr. Fitzgerald suggested that the goals of President-elect Biden with respect to communications network security threats from Chinese-government backed equipment makers would not be very different from those of President Trump, but that Mr. Biden’s "tactics" will likely be different as he will work "more closely with our allies" on national security issues and show "more diplomacy." —Paul Kirby, [email protected], Lynn Stanton, [email protected]

MainStory: Congress FederalNews FCC NetNeutrality SpectrumAllocation WirelessDeployment UniversalServiceLifeline InternetIoT Cybersecurity

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