In January 2017, newly inaugurated President Trump appointed Commissioner Ajit Pai as the Chairman of the FCC. With a Republican majority, Chairman Pai appointed new FCC leadership and began to make policy changes on issues previously decided by a majority Democratic FCC under Chairman Thomas Wheeler. Given the many issues were decided on party lines under Chairman Wheeler (see previous blog entry “FCC: Live by the 3-2 Vote …”), it was inevitable that many decisions would be revisited as Republican Commissioners assumed the majority The same result is expected, again, as soon as President-Elect Biden appoints at least one new Democratic Commissioner and a new FCC Chairman.
Among the most significant and politically charged issues decided by a 3-2 Republican majority from 2017 – 2020 was the Restoring Internet Freedom Order that re-wrote the broadband rules and policies adopted several years earlier by a 3-2 Democratic majority in the “Open Internet Order”; new rules on access to public rights of way and infrastructure for wireless deployments; ownership limits for broadcast stations; assessments regarding the degree of competition in wireless services; and various spectrum auctions.
Perhaps the subject of greatest interest to the public (judging by the huge number of comments filed in the docket) is Net Neutrality. In 2015, the Democratic-controlled FCC classified broadband internet access service as a common carrier service under Title II of the Communications Act in the Open Internet Order, although the FCC decided to forebear from some of the burdensome aspects of common carrier regulation. The FCC adopted three “bright-line rules”: no blocking, no throttling, and no paid prioritization. The FCC also asserted broad authority to investigate and address future conduct by broadband providers that may “unreasonably interfere with or unreasonably disadvantage” consumer choice of lawful content, applications, services or devices, or edge providers’ ability to make content available to consumers.
In Dec. 2017, the Republican majority FCC reclassified broadband internet access service as an information service under Title I of the Communications Act, reinstated the classification of mobile broadband internet access as a private mobile service, and transferred authority to the Federal Trade Commission to enforce the Commission’s scaled-back Transparency Rule, largely revoking the rules and policies of the Open Internet Order.
The stark difference in the two approaches to Net Neutrality indicate that once under Democratic control, the FCC likely will reverse the 2017 decision through another notice and comment rulemaking proceeding, which could result in another round of court appeals, unless the new Congress steps in and resolves the Net Neutrality issues by amending the Communications Act.
The Democratic-controlled FCC is likely to revisit Federal restrictions on state and local authority over aspects of macro tower siting and small cells and other equipment in public rights-of-way that were adopted during the last four years. The outgoing Republican majority repeatedly constrained state and local authorities to encourage more rapid infrastructure deployment for 5G. While the Democratic minority shared the objective of broadband and 5G deployment, the Democratic Commissioners decried the FCC’s decisions overriding local governments’ authority over infrastructure within their boundaries. It will be interesting to see the extent to which a new Democratic majority will readjust the balance of federal and local authority over wireless infrastructure.
On consolidation of ownership of communications facilities and services, there is a long history of Republican majorities at the FCC looking to ease restrictions and Democratic majorities less willing to do so, which affects limits on common ownership of broadcast stations. The FCC’s decision to approve T-Mobile’s acquisition of Sprint adopted by the 3-2 Republican majority reflects decidedly different views of competition in the mobile wireless services.
The party differences on spectrum auctions are influenced by competition and consolidation issues, such as limits on the total amount of wireless spectrum held by any licensee and how rules for different spectrum auctions should be structured, including preferences or advantages to small or other specially situated bidders, such as Native Tribes.
As the particulars of proposed changes are known, they will be addressed in future editions of the Beyond Telecom Law Blog.