Biden Net Neutrality Overhaul Likely to Start With DOJ Filings

What the FCC does on net neutrality starting Jan. 20 likely depends on whether it’s immediately clear when the agency will have a permanent chair, experts said. If Commissioner Jessica Rosenworcel is named acting chief, she would likely wait to start an item if it appears a new chair is imminent. Action on two court cases could come more quickly, experts said. The new FCC’s top focus is expected to be building on the 2015 order, largely revoked by Republicans, to reclassify broadband under Communications Act Title II (see 2101060055).

President-elect Joe Biden’s DOJ is expected to quickly withdraw from a lawsuit at U.S. District Court for Eastern California challenging that state’s net neutrality law (case 2:18-cv-02660), after Justice earlier sided with industry (see 2012020045). The department could also tell the U.S. Court of Appeals for the D.C. Circuit it no longer supports the Ajit Pai FCC’s October order (see 2010270035) addressing the net neutrality remand. Working with DOJ, the acting chair could get both done, without having to seek a vote of what will temporarily be a 2-2 commission.

Net neutrality will be one of the top priorities for the Biden FCC, said Gigi Sohn of the Georgetown Law Institute for Technology Law & Policy: “It’s not just about net neutrality; it’s about restoring authority so the FCC can help close the digital divide.” There are options, said Sohn, who is considered a candidate for chair. The FCC could start a proceeding focused on authority, which would “revisit” the net neutrality rules, since “there’s polishing that needs to be done,” she said. Reclassification “empowers the agency to protect consumers and protect competition,” she said.

Quick reversal on the lawsuit against California “lines up with my expectations and the political incentives for the new administration,” said Wilkinson Barker’s Raymond Gifford. “Net neutrality has become an article of faith for the moderate-to-progressive left.” DOJ could act unilaterally, but “it would be good form to coordinate with the FCC,” he said.

The pandemic has “put a spotlight” on the importance of access to the internet, said Thomas Oppel, executive vice president of the American Sustainable Business Council. With the increased reliance on broadband over the past year, net neutrality is “critically important,” said Oppel, whose group represents companies that consider themselves environmentally and socially conscious, including Ben & Jerry’s and Patagonia. “The tricky part for the FCC right now is going to be with the late appointment of a new Republican member … which is frankly going to make action on anything potentially very difficult.”

“You generally wait for the [permanent] chair to do something that dramatic,” Public Knowledge Senior Vice President Harold Feld said. Action on the two court cases could come quicker, he said. “Day one, the FCC chair can come in and say, ‘Well, you know what, we now think that’s wrong,’” he said of the federal government siding with opponents of the California law. DOJ would then oppose the lawsuit, using arguments made by Rosenworcel and Commissioner Geoffrey Starks, Feld said.

Reestablishing net neutrality rules is a baseline for the next FCC and somewhat of a “given” due to past bipartisan support in Congress, said Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation. What’s new is the FCC’s need to address digital redlining as part of that so fiber infrastructure is deployed equitably and rural or low-income households are not left behind, he said: "There’s lots of talk about how speeds have gone up, but there really isn’t a focus on who is the beneficiary of deployment.”