IE 11 Not Supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

Will Net Neutrality Have Another Chance Under Biden?

The current Federal Communications Commission chairman, Ajit Pai, announced this week that he would be stepping down in January. His departure raises questions about the future of Internet regulation.

net neutrality lawsuit
What does the future hold for net neutrality?

That's the question hastened this week by the announcement that Ajit Pai, the FCC chairman nominated by President Donald Trump, plans to step down from his position on Jan. 20, the day of Biden's inauguration. 

During Pai's tenure, the U.S. famously saw the 2018 "death of net neutrality," with the FCC overturning Obama-era rules that ensured that Internet service providers like Verizon, AT&T and Comcast had a legal obligation to treat all Web content and platforms equally.

Critics have expressed fears that, without net neutrality, there's nothing stopping ISPs from abusing their powers as gatekeepers of the Internet, e.g., squashing the Web traffic of potential competitors, or instituting paid prioritization that would effectively create "fast tracks" for larger, wealthier companies.  

In 2015, allegedly under pressure from President Obama, FCC chairman Tom Wheeler sought to create a firewall against these possibilities — with the agency applying Title II "common carrier" classification to the Internet, meaning that ISPs were banned from various activities, including throttling traffic and blocking access to the websites of competitors and startups. 

Pai would roll back these regulations during his tenure. His signature achievement — dubbed the "Restoring Internet Freedom Order" — opened the floodgates for ISPs to do as they please, including experimenting with paid prioritization and various forms of throttling.  

"Pai really is a fairly big departure [from previous FCC chairmans] only because there was no one that said we should just have an unregulated [telecom] industry until him," said Ernesto Falcon, senior legislative counsel with the Electronic Frontier Foundation. "Until him, previous Republican commissioners under Bush believed in lighter forms of regulation, but they still ultimately believed in regulation." 

Now, with Pai headed out the door, ISPs, tech companies and consumers alike are likely wondering how the incoming Biden administration plans to reshape the federal government's posture towards Internet regulation. Many expect that whoever Biden picks will reinstate the regulations that Pai did away with. 

Potential FCC replacements of Mr. Pai include current commissioner Geoffrey Starks, who has served on the commission for the past two years approximately. Also being considered is Democratic FCC Commissioner Jessica Rosenworcel, who has a much longer tenure — having originally joined the commission in 2011. According to the Wall Street Journal, Mignon Clyburn, a telecom consultant who previously served as FCC commissioner during the Obama years, and who Starks replaced in 2019, is also under consideration.

"I don't think there's any clear signs of who it will be so far," said Falcon. "I think in general it might be safe to assume that [whoever comes in] would reinstate [Title II] regulations that Pai got rid of." 

Yet a recent turn of events is complicating matters: A political scuffle over a recent FCC nomination made by President Trump now threatens to drag the agency into new regulatory territories, while also sidelining issues (such as net neutrality) that have traditionally been considered its purview.  

The story here is a little complicated: Trump recently removed his own nominee for the FCC, commissioner Michael O'Rielly, after O'Rielly apparently criticized an executive order seeking to limit liability protections for social media companies unless they abide by certain speech rules. The order has been interpreted as an attempt to punish corporations like Twitter and Facebook for their alleged anti-conservative bias, a claim the companies have rejected. In O'Rielly's stead, Trump has picked a new nominee, Republican candidate Nathan Simington, who helped write the order

The move is being interpreted by analysts as an attempt to deadlock the FCC at the start of Biden's term, and a deadlocked FCC could effectively block the nomination process for a Pai successor, or at least prevent the agency from resurrecting Obama-era regulations. More problematically, Simington could push the agency to focus on Internet speech issues, which some consider a dangerous trajectory for the agency to embark on

Simington is "a combination of [someone] not really qualified for the position, but also someone who really has different ideas of what the FCC should focus on," said Falcon. 

"One concern that we have right now is that if you deadlock the FCC at 2-2 with two very different philosophies of what the agency should do and if its under the Republican majority, then it could decide not to confirm a chair," said Falcon. This would remove the Biden administration's ability to carry out much of its agenda during its early years, he said. "That's just an awful way to run a government," he added, of the political maneuvering. "A lot of the things that an FCC should be doing may be sidelined." 

All of this has the potential to leave the net neutrality debate at a standstill -- and Pai's legacy of deregulation intact.  

Only time will tell whether Trump gets his wish, though Simington's nomination was recently advanced by the Senate Committee on Commerce, Science and Transportation, which voted 14-12 to send it to the Senate floor, signalling a general Republican support for his candidacy. 

Lucas Ropek is a former staff writer for Government Technology.