Biden picks Rosenworcel and Sohn for FCC, putting net neutrality back on the table

The Federal Communications Commission (FCC), which regulates everything from TV to internet service providers in the United States, is finally poised to pursue the pro-competition, pro-consumer agenda that President Joe Biden laid out in a July executive order declaring that an array of US companies have become too big and need to have their power checked.

It took over nine months, but Biden has picked the FCC’s chair and nominated someone to fill the long-vacant spot for a fifth commissioner. Jessica Rosenworcel, who has served as acting chair since January, will continue to lead as the agency’s permanent chair; she was also nominated for a new term, which would be her third. And Biden nominated Gigi Sohn, a former FCC staffer and prominent advocate for an open and affordable internet, to fill the agency’s last spot.

Assuming the confirmations go through, which is expected because Democrats control the Senate, the biggest change to watch for is that the FCC will finally have the Democratic majority it needs to bring back Obama-era net neutrality rules, which have become a hugely divisive issue between Democrats and Republicans.

“It’s the honor of a lifetime to be designated to serve as FCC chair,” Rosenworcel said in a statement.

Obama’s FCC passed net neutrality in 2015. It’s best known as the rule that forces internet service providers, or ISPs (Comcast, Verizon, and AT&T, for instance), to treat all of the data that travels across their networks equally. Under those rules, these companies couldn’t charge more if customers go to certain sites, or make their internet speeds faster or slower depending on where they go and the services they use. The term net neutrality was coined by Tim Wu, who, incidentally, is currently serving as Biden’s adviser on technology and competition policy. Net neutrality opponents believe the rule stifles innovation and discourages internet service providers from investing in their networks.

In order to pass net neutrality, the FCC reclassified broadband from an information service to a common carrier, like telephone service. That then gave the FCC more regulatory power over it. The reclassification also allowed the FCC to make new privacy rules that ISPs had to get customers’ permission before collecting and sharing their data, such as their web browsing histories.

When Trump took office, his FCC, chaired by Ajit Pai, quickly set about repealing net neutrality and re-reclassifying broadband as an information service. Those ISP privacy protections never went into effect, and internet service providers were able to continue to collect, sell, or share customer data — which they very much do, per a recent FTC report. The feared onslaught of extra charges to access certain websites or blocking others didn’t come when net neutrality was repealed, but the FCC effectively ceded much of its control over broadband providers and services as they became an increasingly essential part of Americans’ lives.

Biden said in his executive order that he wants the FCC to bring net neutrality back. But he took a surprisingly long time to nominate the commissioners he’d need to make that happen. Since Biden took office, the FCC has been deadlocked at two Republican commissioners (Nathan Simington, who was confirmed in the waning days of Trump’s presidency, and Brendan Carr) and two Democrats (Rosenworcel and Geoffrey Starks).

“The real issue is this: We’ve already lost a year,” Harold Feld, senior vice president at open internet advocacy group Public Knowledge, told Recode. Feld worked for Sohn when she was the CEO of Public Knowledge, which she co-founded.

The 2-2 FCC has done a lot of work over the last nine months to expand broadband internet and put programs in place to help lower-income people afford it (Sohn is also big on this, telling Recode last year that affordability is the biggest hurdle to closing the digital divide). The pandemic made it obvious that broadband internet access was no longer a luxury, it is an essential service. But there was no way a deadlocked FCC was going to pass net neutrality. As months went by with no apparent action on naming a permanent chair or appointing a fifth commissioner, Democrats began to lose patience. On September 22, 25 Democratic senators wrote a letter to Biden urging him to name Rosenworcel as the permanent chair “as quickly as possible.”

Sen. Amy Klobuchar (D-MN), who was one of the signees, said in a statement to Recode that she strongly supports the two nominations, adding: “Strong leadership at the FCC is essential to deliver on the connectivity goals our 21st-century economy demands. … I am confident that both Rosenworcel and Sohn have the expertise needed to close the digital divide and strengthen our nation for generations to come.”

Rep. Anna Eshoo (D-CA), who told Recode back in January that Rosenworcel was her pick for FCC chair, lauded Biden’s picks as “historic,” noting that Rosenworcel is the first woman to serve as the FCC’s permanent chair and Sohn will be its first openly LGBTQ+ commissioner.

“Rosenworcel and Sohn are brilliant champions for innovation, public safety, national security, universal broadband, net neutrality, and social justice,” Eshoo said.

Assuming Biden’s nominations go through, the FCC will have three commissioners who are on record as staunch advocates of net neutrality, which makes an attempt to bring it back almost a certainty. Starks has called it a “critical issue” that the FCC “dropped the ball” on when it was repealed. Rosenworcel was an FCC commissioner back in 2015 when net neutrality initially passed, and she voted for it; she was an opponent of its repeal, saying it “put the agency on the wrong side of the public, the wrong side of history, and the wrong side of the law.” And Sohn was the counselor to Obama-era FCC chair Tom Wheeler when net neutrality was passed. She’s consistently pushed for its reinstatement, saying in 2019 that it’s “critically important to the future of the Internet that net neutrality and important FCC oversight get reinstated.”

“The FCC can now return to being a champion for consumers,” Wheeler told Recode. “Gigi Sohn is a proven and tested consumer champion; together with Geoffrey Starks, chair-designate Rosenworcel has the opportunity to reverse the practices of the Trump years and return the agency to its consumer and competition responsibilities.”

But net neutrality won’t happen immediately, even under the best circumstances.

“It takes a long time to get an FCC order written,” Feld said. “It’s a very complicated process. Particularly for something like this, where there’s going to be a lawsuit, and it’s going to be contentious.”

Net neutrality isn’t the only thing the FCC will likely take back up from the Obama era. The Biden order also called on the FCC to bring back the “broadband nutrition label” that would clearly spell out for consumers how much they pay for their broadband internet service (including all those hidden fees) and the speeds they get for that money.

The FCC will also likely take more action on consumer protection and competition matters, Feld said. Biden’s order asked the FCC to require broadband providers to tell the agency their rates and subscriber counts, ban early termination fees that keep customers locked in, and stop landlords from making deals with cable and broadband companies that restrict tenants’ choice in providers. Feld expects those measures will bring broadband prices down. While broadband rates vary across the country, the United States, on average, pays more for internet than most of the rest of the world. The FCC is also in the process of opening up more radio frequencies, or spectrum, for 5G services, improving its flawed broadband maps, and ridding us of the scourge of robocalls and texts.

It remains to be seen whether the FCC has enough time to see all of Biden’s initiatives — and those of the now-permanent chair — through the House and the Senate. His slow path to getting his FCC in place might have squandered the possibly limited time it will have if Democrats lose control of Congress next year and the presidency in 2024. Still, Feld thinks the FCC will go back to its traditionally lower-profile role — “the technical and boring stuff.”

“I say this as the ultimate compliment: Jessica Rosenworcel is the wonkiest, nerdiest possible choice for FCC chair,” Feld said. “Which is exactly what you want.”