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100,000 people ask Biden, will ya break that 2-2 FCC deadlock already?


President Joe Biden speaking at a podium, with American flags in the background.
Enlarge / President Joe Biden speaks during an event on gun control in the Rose Garden at the White House April 8, 2021 in Washington, DC.

Getty Images | Alex Wong

Over 105,000 people have signed a petition urging President Biden to quickly break the Federal Communications Commission’s 2-2 deadlock between Democrats and Republicans.

Senate Republicans created the 2-2 deadlock in December 2020 by confirming a Trump nominee during the lame-duck session before Democrats took control of the White House and Senate. If not for that confirmation, the FCC would have had a 2-1 Democratic majority heading into Biden’s presidency. But with the FCC stuck in partisan deadlock, consumer advocates say that Biden must act quickly to add a Democratic commissioner.

The petition is on the Battle for the Net website operated by advocacy groups Fight for the Future and Demand Progress. The groups said:

The Federal Communications Commission is deadlocked, and will remain so until the Biden administration nominates, and the Senate confirms, a fifth commissioner. But we desperately need a functional FCC now: Millions of people are without reliable Internet access in the midst of a pandemic, kids are sitting outside Taco Bell to do homework, and people need to access information about how to get a vaccine. The Biden administration needs to nominate a fifth commissioner who doesn’t have ties to the telecom industry and will stand up to the ISPs, who supports reinstating net neutrality, and who will expand broadband and ensure everyone—especially low-income neighborhoods and communities of color who have experienced the greatest harm by the digital divide—has affordable access to the Internet.

Another version of the petition on the Free Press Action website says the “deadlock has put some of our most important work on hold,” such as “taking bold action to make Internet access more affordable and hold ISPs accountable for their abusive behavior” and “generally picking up the mess that Trump’s FCC chairman, Ajit Pai, left behind.”

Advocates also answered questions in a Reddit AMA yesterday.

Biden’s broadband plans

Right after taking office in January, Biden appointed Democratic Commissioner Jessica Rosenworcel to be the FCC’s acting chairwoman. To fill out the commission, Biden could add one commissioner and take the “acting” designation off Rosenworcel’s title of chairwoman, or he could make the as-yet-unnamed fifth commissioner the chair with Rosenworcel going back to her role as a member of the FCC.

Biden appears to be taking the nation’s broadband availability and affordability problems seriously. He proposed a $100 billion broadband plan that would build more publicly owned networks and prioritize “future-proof” networks instead of ones that would quickly become outdated. He also promised action to lower broadband prices and require ISPs to clearly disclose prices instead of obscuring the true cost of service by tacking on hidden fees not included in advertised rates. The cable industry is already lobbying against the plan, saying the US should favor private ISPs and take no action to lower prices.

Biden also hired Tim Wu, coiner of the term “net neutrality,” as special assistant for technology and competition policy. Still, the months without a 3-2 Democratic majority on the FCC could delay attempts to expand broadband availability and lower prices.

“There is a real cost to continued delay”

“I think it is simply a matter of priorities [for the Biden administration],” Harold Feld, a longtime telecom attorney who is senior VP of consumer advocacy group Public Knowledge, told Ars today. “It’s clear from the infrastructure package that they ‘get’ the importance of broadband. But it appears they haven’t freed up time at the top to settle on candidates and meet with people. Keep in mind that the president is going to want to meet with the future FCC chair, even if it’s Rosenworcel, before nominating. That’s standard protocol.”

But while Feld said the lack of a nomination during Biden’s first 11 weeks as president is “understandable,” he added that “there is a real cost to continued delay.” Once Biden nominates a new commissioner, the Senate will have to schedule hearings and confirmation votes, “which is going to be problematic to schedule once we get into the summer recess and then the final rush in the fall,” potentially leaving the fifth slot unfilled for most of 2021. Feld continued:

That’s basically a year lost on the ability to move forward on anything remotely controversial, or starting major new initiatives. That’s huge, particularly if either the House or Senate (or both) flips in 2022. As I say, it’s understandable given the multiple crises and the catastrophic damage done by the Trump Administration to the basic infrastructure of governance. But even if it’s understandable, it’s a trade-off with costs that need to be appreciated.

FCC has work to do, even with 2-2 deadlock

The deadlock means that Rosenworcel can’t pursue big initiatives that Republicans are certain to oppose, such as re-implementing net neutrality rules and reversing Pai’s deregulation of the broadband industry.

That doesn’t mean the Rosenworcel-led FCC won’t get anything important done, though. She is working on improving the accuracy of the FCC’s broadband-availability maps and implementing congressional mandates to distribute $50-per-month emergency broadband subsidies and a $7.17 billion Emergency Connectivity Fund that schools and libraries will use to help people get Internet access at home.

Biden’s nominations so far include antitrust scholar Lina Khan to the Federal Trade Commission; gun-control advocate David Chipman to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives; and Rohit Chopra to lead the Consumer Financial Protection Bureau. Biden still needs to nominate another Democrat to the FTC to ensure a 3-2 majority because Chopra is an FTC commissioner and would have to leave that role when confirmed by the Senate to lead the CFPB. There are also unfilled slots at various other federal commissions.

“White House inherited several crises”

Free Press VP of Policy and General Counsel Matt Wood agreed with Feld that the lack of an FCC nominee so far is understandable, telling Ars, “this White House inherited several crises from the last president of international and historical scale, and has moved to tackle many of them all at once.”

Wood continued:

Groups like Free Press and our allies have made clear how important it is to get the FCC back to full strength, to keep implementing the good new laws Congress has passed in the last six months and to do the agency’s work of treating broadband like an essential telecom service once again. But while we still want—and need—a stellar nominee for that final spot at the FCC as soon as possible, it’s hard to fault the administration for hiring in its own team first and moving the American Jobs Plan announced last week in tandem with all of these important appointments.

Additionally, given the level of “expertise in the acting chairwoman’s office,” the White House may “rightly believe” that filling up the FCC “is a slightly less pressing priority than repairing the damage done at other agencies by the Trump years,” Wood said.



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