President Biden's recent executive order to promote economic competition reaffirmed his commitment to restoring net neutrality protections. For that to happen, however, he must first determine the composition of a new Democratic majority on the Federal Communications Commission (FCC).
On July 9, the Biden administration released an executive order that contained an array of directives and policy statements aimed at restoring competition throughout the American economy. When the White House first announced the new order, I did not anticipate that it would have much relevance to EDUCAUSE's federal policy interests. However, I, along with many net neutrality stakeholders, was pleased to find that the order contained an explicit statement of support for restoring strong net neutrality rules at the national level:
(l) To promote competition, lower prices, and a vibrant and innovative telecommunications ecosystem, the Chair of the Federal Communications Commission is encouraged to work with the rest of the Commission, as appropriate and consistent with applicable law, to consider:
(i) adopting through appropriate rulemaking "Net Neutrality" rules similar to those previously adopted under title II of the Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in "Protecting and Promoting the Open Internet," 80 Fed. Reg. 19738 (Apr. 13, 2015);Footnote1
Unfortunately, the statement itself includes the seeds of the current problem preventing the Federal Communications Commission (FCC) from pursuing the reinstatement of net neutrality protections. The FCC leadership comprises five commissioners—two Republicans, two Democrats, and a chairperson from the party that controls the presidency. When the White House changes hands from one political party to another, the FCC chairperson appointed by the previous administration resigns, which allows the new president to appoint a chairperson from their party.
The FCC chairperson appointed by former President Donald Trump, Ajit Pai, resigned shortly after the start of the Biden administration, and one of the Democratic commissioners, Jessica Rosenworcel, assumed the role of acting chairperson. Taking this approach gives the Biden White House time to decide whether to appoint Rosenworcel as the new FCC chairperson—subject to Senate confirmation—and then nominate a new commissioner to fill the open seat, or to nominate a completely new person to be the chairperson and return Rosenworcel to her commissioner's seat once the new chairperson has been confirmed by the Senate.
Until the Biden administration makes that call and the Senate confirms the new chairperson and/or commissioner, the FCC remains deadlocked. Without a Democratic majority on the commission, there is no chance of restoring net neutrality protections. So, translating President Biden's position on net neutrality as stated in his executive order requires the president to decide how he wants to construct the Democratic majority on the FCC. That will allow the Democratic majority in the Senate to get to work confirming the nominee(s). Once there is a new, Senate-confirmed Democratic chairperson and/or commissioner in place, the FCC can begin the roughly year-long process of developing and implementing a new net neutrality order. Such a directive will most likely reclassify consumer broadband service as a telecommunications service under Title II of the Communications Act and establish net neutrality rules similar to—and potentially even stronger than—the 2015 regulations that Pai overturned during the Trump administration.
- U.S. President Executive Order, "Executive Order on Promoting Competition in the American Economy," July 9, 2021. Jump back to footnote 1 in the text.
Jarret Cummings is Senior Advisor for Policy and Government Relations at EDUCAUSE.
© 2021 Jarret Cummings. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.