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Blog Post | August 2, 2021

Key FCC Vacancy Threatens Net Neutrality's Return

Consumer ProtectionExecutive BranchFCCTech
Key FCC Vacancy Threatens Net Neutrality's Return

Al Gore once awkwardly claimed to be responsible for “creating the internet”, but another Democratic former Vice President could soon plausibly take credit for saving it. 

Among the many promising elements contained in President Biden’s landmark executive order on competition is its encouragement of the FCC to restore its net neutrality rules, which were repealed by Trump-era Chairman and fidget spinner-enthusiast Ajit Pai in 2017. Net neutrality, a term originally coined in 2003 by Biden White House official Tim Wu (whose fingerprints are all over the EO), is the concept that service providers like Comcast or AT&T should treat all internet traffic equally. In effect, this means that ISPs cannot provide preferential treatment to certain websites by throttling service speed or creating “fast lanes” for websites favored by the ISP. Prior to Pai’s stewardship of the FCC, the agency had enshrined net neutrality into law by reclassifying broadband internet as a telecommunications service, enabling ISPs to be regulated by the agency like a public utility under Title II of the Communications Act. Biden’s EO encourages a return to the status quo that Pai — a former Verizon lawyer — reversed in 2017, urging the FCC to “adopt through appropriate rulemaking ‘Net Neutrality’ rules similar to those previously adopted under Title II”. 

Other provisions in the EO take direct aim at ISPs’ growing monopoly power and lack of price transparency. Citing a growing lack of competition among ISPs that has left millions of Americans — particularly those in low-income neighborhoods — grappling with soaring internet prices, the EO encourages the FCC to stop ISPs from entering exclusivity deals with landlords that leave tenants with only one broadband service option. The order also urges the FCC to rein in high termination fees levied by providers against customers who switch ISPs. It also restores an Obama-era price transparency plan to require ISPs to report their prices and subscription rates to the agency. Together, the EO’s provisions lay out an ambitious vision for how the FCC can leverage its power to help reduce prices and expand options for consumers.

There’s just one problem: Democrats don’t have a majority at the FCC itself. Despite Pai having been replaced by Democrat Jessica Rosenworcel as Acting Chair in January, the agency’s five-commissioner board is stuck in a 2-2 partisan deadlock arising from a vacant fifth seat for which Biden has thus far failed to name a nominee. If this seat is not filled quickly, the EO’s sweeping vision for the FCC will likely fail to come to fruition. Republican FCC Commissioners Brendan Carr and Nathan Simington have both vocally opposed the order’s provisions about net neutrality and suggested the issue should be punted to Congress (where it may die at the hands of Comcast’s favorite Democrat Kyrsten Sinema). Rosenworcel and Democratic Commissioner Geoffrey Starks have both praised the White House’s support for promoting broadband competition, but their statements will mean little if they cannot win commission votes to restore Title II classification. Biden must nominate a net neutrality champion to this seat immediately and urge his party to do whatever it takes to expedite their confirmation. Given that Rosenworcel’s acting term cannot be extended past January 2022, Biden would also be wise to name a permanent chair of the Commission.

There’s no time to lose. Since Pai and the Trump-era FCC gutted net neutrality in 2017, ISPs have taken advantage of an unregulated broadband market and have been caught throttling data speeds for everyone from Skype users to California firefighters. Broadband prices also soared during Pai’s reign, with the average U.S. home internet bill increasing by 19 percent during the first three years of the Trump administration. The Covid-19 pandemic’s unprecedented shifting of our daily lives further online (for example, Zoom classrooms and work meetings) only further emphasizes the need to protect the internet from broadband monopolies eager to throttle vital services and extract every last penny from consumers.  Without an immediate nomination of a pro-net neutrality fifth commissioner, Biden’s promise to restore a free and open internet will — as the ACLU’s Chad Marlow put it — ring hollow

If President Biden truly wishes to save Al Gore’s internet, he must name a permanent FCC Chair and nominate a fifth commissioner without further delay. 


IMAGE: “FCC Save The Internet Rally 20” by Stephen D. Melkisethian is licensed under CC BY-NC-ND 2.0

Consumer ProtectionExecutive BranchFCCTech

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