Nearly three years after the 2020 election, the FCC finally approved a fifth Commissioner for the FCC. The Senate voted 55-43 to confirm Anna Gomez as the newest FCC Commissioner. This will be the first time since Ajit Pai resigned in January 2021 that the Commission will be at full strength.
For those that might wonder why this matters, the five seats on the FCC are generally split 3-2 in favor of whatever party holds the White House. Without the third Commissioner for the party in current power, the FCC is easily gridlocked on numerous issues.
The industry is already speculating about what a fifth Democratic Commissioner might mean. President Biden made his feelings clear early in his administration that he hoped the FCC would tackle the monopoly powers of the big ISPs. However, the FCC is an independent agency that is not under the direct control of the White House, and past FCCs have not always been in lock-step with the White House.
Following are some of the issues the FCC might tackle:
Restoring Title II Regulation. We just found out yesterday that Chairwoman Jessica Rosenworcel isn’t going to waste any time after seating the fifth Commissioner, and she intends to quickly tackle the restoration of Title II regulation. The FCC under Ajit Pai eliminated Title II regulation, which was the mechanism chosen to regulate broadband since there is no specific mandate to do so from Congress. Congress could mandate that broadband be regulated by passing a law, but there have never been enough votes to do so. Until the day when Congress acts, the FCC can only regulate broadband by trying to make broadband fit into existing regulations. Title II does just that by declaring broadband to be a telecommunications service, meaning it can be regulated using the same authority used to regulate telephone and cellular services.
The press is already labeling this as an effort to reinstate net neutrality, but net neutrality is a minor portion of what it means to regulate broadband. Using the power of Title II regulation to regulate broadband means that the FCC can tackle things like mediating disputes between broadband companies, establishing some limits on broadband rates, and even doing simple things like intervening when ISPs abuse customers. Unfortunately, if the FCC pulls off the reinstatement of Title II regulation, it will begin another cycle of what I call the regulatory yoyo, where rules come and go with the change of administrations.
Tackling Broadband Discrimination. ISPs have long been accused of redlining – of only building broadband infrastructure to selected neighborhoods. If anything, it looks like many fiber builders are discriminating even more than in the past and building infrastructure only in neighborhoods with the highest returns on investment. Earlier this year, the FCC opened a docket to investigate digital discrimination, and it seems likely that this topic will take on more importance with a fifth Commissioner.
Regulating Web Companies. In the last few years, the biggest web companies have seemingly gone off the deep end and instituted policies that invite regulation. Big web platforms like Facebook and X (Twitter) are suddenly blocking news and content and allowing the proliferation of mass misinformation. It’s probably within the FCC’s power to impose some regulations on the big platforms – or to at least try.
Media Cross-ownership. The FCC under Ajit Pai largely eliminated rules against the cross-ownership of print media and broadcast outlets – bringing in an unprecedented consolidation of the way that Americans get local news. The Ajit Pai FCC also made it easier to allow foreign investment in media companies and to relax the reporting of foreign investors. Current Chairwoman Jessica Rosenworcel has shown a desire to clamp down on the worst of these practices.
Of course, a fully staffed FCC might not tackle all of these issues or might tackle them in unexpected ways. In the past, the Chairperson of many FCCs has tried to put a personal stamp on FCC actions to make a name in history. Now that there is finally a fifth Commissioner we’re going to see what Chairwoman Jessica Rosenworcel has in mind.