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How Bidens FCC Might Repair America's Web

If Joe Biden becomes president on Jan. 20, he will oversee a Federal Communications Commission (FCC) that could do remarkable things. Among other things, the new FCC could bridge the digital divide and ensure that all Americans have access to the Internet. But while Biden's victory is assured, it depends on how much his FCC can do – or whether the Democratic majority is likely to be able to -.

The Trump administration's FCC had an agenda. Under the leadership of outgoing Chairman Ajit Pai, the agency has urged liberalizing the industries within its remit in return for creating a business-friendly environment with few rules, little accountability and minimal control for some of the largest and most powerful companies in the world. In the months and years to come, the FCC is likely to overturn some of these policies, particularly Pai's most controversial decision: Removal of Net Neutrality, a policy that requires Internet service providers to treat all types of Internet traffic equally. But getting broadband internet in as many households as possible during the pandemic is the most pressing goal for many Democrats, and one that they believe the Trump administration didn't make it through.

"Because the Trump FCC has not tackled the digital divide sensibly, millions of Americans are still lacking high-speed Internet," Anna Eshoo MP (D-CA) told Recode. "This is making the effects of the pandemic worse and the Biden government needs to address this head on."

She added: “Everyone in our country needs high-speed internet. Period. We have failed to expand access to rural and tribal areas for too long, and too many urban communities cannot afford broadband. "

The Biden Administration FCC can aid this effort by making the Internet more affordable and accessible. This could mean providing more subsidies for people on lower incomes, continuing their work of improving broadband access, and opening more high-frequency bands to high-speed 5G networks to bring the United States up to par with its peers. The agency is also poised to restore net neutrality and classify broadband Internet as a Title II service, which would give the FCC more authority over the airlines. Under the Biden administration, the agency is also likely to kill Trump's anti-social media mission to create rules under Section 230.

With these goals in mind, Biden will select a new FCC chairman who will go a long way in setting the agency's agenda. But he'll also inherit an FCC that's stuck with two Republican commissioners and two Democrats and has an open seat that may be difficult to fill if Republicans keep control of the Senate. A Republican majority Senate is also likely to refuse to vote on any legislation that could allow funding for FCC democratic-chaired initiatives.

Experts and FCC insiders told Recode that they foresee a Biden FCC that came out of an attempt to rule and that they are recapturing some of the authority it ceded under Trump. And the glass ceiling of the FCC could finally break with the first chairman in its 86-year history.

Where the FCC is now

The legacy of Pais FCC will be a "light-touch" approach and deregulation on a mass scale. Proponents say it encourages investment and innovation, and opponents argue that it benefits businesses at the expense of consumers. While the Pai FCC has made efforts to bring broadband internet to rural and tribal communities – benefiting the Red States in particular – it has done little to make these services affordable for lower-income people.

Federal Communications Commission Chairman Ajit Pai drinks from a large coffee mug during a commission meeting on December 14, 2017 in Washington, DC.

A great mug and outgoing FCC Chairman Ajit Pai.

Alex Wong / Getty Images

"We still don't know exactly what the results of (Pais) billions of dollars for rural Internet service providers will be," said Gigi Sohn, a distinguished associate at the Georgetown Institute for Technology & Law Policy, who worked for the FCC during the Obama Government, said Recode. "I hope this will connect a lot more people together, but that's the smallest part of the digital divide. Most of the digital divide is affordability. He never talks about it."

Much to the dismay of many Democrats, including the FCC's Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks, the agency has made efforts to update programs like E-Rate and Lifeline that could help people get increasingly essential internet services in their homes .

Pai is perhaps best remembered for overturning the Obama-era net neutrality decision, which he vehemently opposed as commissioner of a minority party. When Trump took office and promoted Pai to chair, he immediately set about reversing that decision. Under Chairman Tom Wheeler, the Obama FCC had classified broadband Internet as a Title II service, subjected it to increased supervision, and established Internet service as a necessary utility for Americans. This meant that Internet access was no longer treated as a luxury like cable television, but protected and guaranteed like a telephone service. Pai's FCC upgraded broadband as a Title I service, largely under the jurisdiction of the Federal Trade Commission.

This was perhaps one of the most controversial decisions in the history of the FCC, viewed by its opponents as a gift to Internet service providers who could now charge consumers more for accessing certain websites or using various Internet services. Pai called it "restoring internet freedom" and encouraging ISPs to put more money into expanding their reach across the country without worrying about onerous regulations that would affect their bottom line. Pai's orders have been protested in person and online by millions of Americans. Meanwhile, millions of comments advocating the end of net neutrality have been deemed fake.

Protesters gather outside the Federal Communication Commission building to protest the end of net neutrality rules on December 14, 2017 in Washington, DC.

One of the many protests against the repeal of the Trump FCC's net neutrality.

Chip Somodevilla / Getty Images

This is how Pais FCC began. Here's how it goes: Pai recently announced that when Biden takes office, he'll be packing his branded mug and leaving the FCC. Therefore, ironically, his reign will likely end with an attempt to introduce more regulation through Section 230, a 25 -annual law that allows websites to moderate third-party content at their discretion without being liable for that content (with a few exceptions ). Simply put, you can sue a Twitter user if they tweet something defamatory about you, but you cannot sue Twitter. In this way, websites based on user-generated content can exist. Trump hoped to arm the FCC, an allegedly independent agency that has become increasingly partisan in recent years, against social media companies he believes are censoring conservative speech by creating rules that protect them Section 230 could repeal.

The repeal or substantial amendment of Section 230 has become Trump and the rallying cry of his surrogate mothers in the latter half of his year-long presidency. But the bills of the Republican legislature, which would change Section 230 to force platforms to be “politically neutral” in their moderation or to make their moderation rules more transparent and clearer for users, have so far come to nothing. An executive order passed by Trump in late May attempted to bypass the legislative process by asking the FCC to "clarify" which content platforms can and cannot moderate if they want to maintain their Section 230 protection. Some scoffed at this authority, arguing that it was both false and in direct contradiction to Pai's arguments for lifting the Obama-era net neutrality rules. Indeed, Pai's willingness to comply with Trump's demands regarding Section 230 means that once his tenure is defined by a desire to impose as few rules as possible on private companies, it will likely end in a failed attempt to set some rules for some of the largest Company to introduce to the world.

Rosenworcel and Starks have publicly stated that they do not believe the FCC should play a role in Section 230, and that view appears to be shared by Democratic legislators. While Biden expressed a desire to repeal Section 230 to the New York Times in January – an opinion a campaign spokesman told Recode it had not changed – he has not yet put forward any proposed measures, and Section 230 is It is unlikely to be a major administrative priority anytime soon.

Trump FCC could still try to do something with Section 230 before the government changes hands – and with the approval of a third Republican commissioner in Nathan Simington, it has the majority it needs to do so. But there is only a thin window of time before Pai leaves, leaving the FCC stuck 2-2 until the Senate confirms whoever nominates Biden as fifth commissioner. And the House Democrats have also asked the FCC to stop any work on controversial issues. That request was made by the Obama FCC when Trump won the election, and it was followed. At the time, then-Commissioner Pai made a statement supporting the break. It would therefore be hypocritical for him to pursue the controversial Section 230 business.

Wheeler, who was the FCC chairman during Obama's second term, said he would be disappointed with Pai if he refused to comply with the Democrats' request, but not necessarily surprised: “It wouldn't go beyond the way of doing that Trump administration has worked: & # 39; It's all about us. & # 39; "

Who will be in the FCC when Biden takes office?

The FCC can only have three commissioners from the same political party and currently has a 3-2 Republican majority. Michael O & # 39; Rielly, an Obama-nominated Republican commissioner, ended his first full term in July 2019 and was nominated for a second term by Trump only for Trump to withdraw the nomination after O & # 39; Rielly declared he was Don't think so. The FCC should regulate Section 230. Trump then appointed Senior Advisor to the National Telecommunications and Information Administration (NTIA), Nathan Simington, who assisted in the execution of Trump's Anti-Section 230 Executive Order and is considered a Trump loyalist.

In his confirmation hearing before the Senate Commerce Committee, Simington would not commit to supporting democratic initiatives such as expanding the e-rate program, which offers schools and libraries discounted internet access, to homes that have become classrooms during the pandemic. Senator Richard Blumenthal (D-CT) was a particularly vocal opponent of Simington, also because of its association with Trump's Section 230 Executive Order.

Shortly before the Senate vote to confirm Simington, Blumenthal said the candidate was "dangerous" to any efforts by the FCC to make broadband internet more accessible and affordable for the millions of students who need it, and that it was Trump only was appointed to meet the president's revenge against social media companies. The only reason for the Senate to ratify Simington now, Blumenthal said, would be to undermine the new Biden administration at the expense of the agency's precedent and perceived independence.

It didn't matter: Simington's confirmation was sent through the Senate on Tuesday and he was approved by partisan standards for a five-year term, dated back to July 1, 2019 (when O'Rielly's term officially ended). So he'll be there for a while.

The question also arises of who will choose Biden as the new chairman of the FCC. Many believe Biden will appoint a woman here, as the FCC has never had a chair in its 86-year history (unless you count Mignon Clyburn's 2013 acting chair for several months). Clyburn and Rosenworcel were circulated here as likely choices. Both have FCC experience and both advocated the affordability of broadband and added broadband to the Lifeline program, which subsidizes phone bills for low-income people.

But Clyburn appears to have moved on from her time at the FCC which ended in 2018. She joined the boards of Lionsgate in July and RingCentral, a cloud communications provider, in November. The Senate would also have to approve Clyburn, and with a Republican majority it could well refuse. This could be a point for Rosenworcel as it doesn't need to be confirmed. Rosenworcel has long advocated FCC action to bridge what it calls the "homework gap" between students who have access to reliable high-speed internet to do their homework and students who do not. This void has never been more evident and devastating than it was during the pandemic.

"Commissioner Jessica Rosenworcel is brilliant and effective and has a broad and in-depth knowledge of all things FCC," Rep. Eshoo said in an email. "Without a doubt, she is my first choice for the chairman of the FCC. She would hit the ground from day one."

Of course, it's also entirely possible for Biden to nominate someone else – maybe even someone completely unexpected – to head the FCC. For example, Clinton-era FCC chairman Reed Hundt was unknown and had very little to no telecommunications experience prior to his appointment. However, he was the college roommate of Vice President Al Gore.

"I know quite a few people want it," said Wheeler. "The fact is, Joe Biden has been in this town for 47 years. He knows a lot of people and they don't have to be the usual suspects."

Former FCC chairman Tom Wheeler with then commissioner Mignon Clyburn (left) and Jessica Rosenworcel (right) in 2015. Both women are to be selected as the next FCC chairperson.

Mark Wilson / Getty Images

What the FCC will do

A Democratic majority will make it a lot easier for anyone who becomes the new FCC Chairman to achieve their vision. But even without this benefit, there are ways to get things done.

"There is still a lot you can do because the chairman controls the office and offices," Harold Feld, senior vice president of the Open Internet Advocacy Group Public Knowledge, told Recode. "And you can do a lot with what is called delegated authority. … The chairman is not toothless about the ability to use the power of the FCC."

What is pretty clear is that a Biden FCC wants to do as much as possible to close the digital divide. The affordability of broadband is an essential part of this. In addition to expanding the E-Rate and Lifeline programs and continuing work to improve access in rural and tribal areas, expect a Biden FCC to reverse the abolition of net neutrality and make broadband Internet as Title II under the Communications Act – Classified service. This would subject broadband Internet carriers to the same increased regulatory and tariff regulations as telephone companies. So, where Pai had to ask companies not to cut homes or businesses off the internet if they couldn't pay their bills during the pandemic, and expand their low-income programs (the results of which are up for grabs), an FCC rated broadband as such Title II network operators would have more leverage to require this.

There is also a potential privacy benefit when ISPs become Title II providers, as Wheeler pointed out. Under Title II, the FCC was able to establish the power to require ISPs to obtain consumer permission before disclosing certain information about their Internet life, including browsing history, location and email content. This was seen as a great privacy win, and Wheeler hopes the new FCC will find a way to restore that privacy.

The Biden FCC must also help facilitate the spread of 5G across the country and will be responsible for releasing more bands in the spectrum to make it available. Increased 5G access would give more Americans access to higher internet speeds in more places, which has become a priority during the pandemic. While the current FCC is already working on that effort, some believe the Biden administration will encourage the inter-agency collaboration needed to make this happen quickly. During the Trump administration, various agencies battled over the spectrum, holding back efforts to open more bands and expand 5G's potential.

"The way Trump ruled things was to play everyone off against each other," Feld said. “It has become much more problematic that the federal authorities have increasingly said no to the FCC. … It is crucial that a Biden administration take steps to smooth this out. "

Even so, it is difficult to say for sure what the Biden government can do, especially when it comes to this already atypical transition process. The uncertainty about the new FCC now even extends to when and whether the Biden transition team will get access to the FCC or whether the Trump administration will hold out as long as possible to make life difficult for the Biden team. With the problems on the table – bridging the digital divide, restoring network neutrality, and rolling out 5G – any delay in introducing the new FCC would ultimately work to the detriment of the American people. But at some point there will be a new FCC.

"It's going to be interesting," said Wheeler. "This will be a great time to be chairman of the FCC."

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