US president Joe Biden took a major step toward restoring net neutrality on July 9, a set of rules preventing internet service providers from selectively blocking or slowing down web traffic. In a sweeping executive order aimed at increasing competition in the American economy, Biden directed federal regulators to consider restoring net neutrality rules adopted under former president Barack Obama in 2015 and revoked under former president Donald Trump in 2017.
Before Biden can revive net neutrality after its untimely death at the hands of the Trump-era FCC, he’ll need the Senate to cooperate.
The Federal Communications Commission (FCC) has the power to make and enforce net neutrality rules. But the commission is trapped in partisan gridlock because there’s a vacancy on its five-member board. That leaves the two Democrat-appointed members and two Republican-appointed members deadlocked on major decisions like restoring net neutrality.
Until Biden nominates and the Senate approves the appointment of a fifth commissioner to serve as a tie-breaker, the FCC appears incapable of acting on Biden’s order, according to Evan Greer, deputy director of the internet advocacy group Fight for the Future. “The Executive Order has a lot of great words, but we need to see some action for those words to mean anything,” she wrote in a statement. “To achieve many of the goals laid out in this order, the Biden administration needs to move quickly to nominate a fifth FCC commissioner who doesn’t have ties to the telecom industry and will stand up to the [internet service providers].”
The fight for a fifth FCC commissioner
That may be easier said than done. Biden still has not nominated a fifth commissioner, which would mark the formal start of the months-long process of getting a candidate through the Senate approval process. Even once a commissioner is approved, it’ll take a while before they can muscle the regulatory gears of the FCC into action. Obama-era FCC chairman Tom Wheeler took office in 2013, and didn’t manage to finalize the administration’s net neutrality rules until two years later.
Advocacy groups are getting antsy. In a June letter, 57 organizations including the ACLU and the Electronic Frontier Foundation urged Biden to move faster to get an FCC nominee through the Senate. “Given the legislative calendar and the diminishing number of days for hearings and confirmation votes, we have reached a critical point to guarantee the agency charged with ensuring affordable communications access can do its work during your administration,” they wrote.
If the FCC does eventually heed Biden’s call to restore net neutrality rules, it will almost certainly face an immediate legal challenge from Republicans and telecom industry groups. At that point, Biden administration lawyers will have to contend with the fact that Trump-era FCC chairman Ajit Pai ruled in 2017 that the commission lacked the regulatory authority to make net neutrality rules. “I am sure former chairman Pai’s decisions and verbiage are going to be cited by those challenging the current administration,” said Brad Newman, a lawyer at Baker McKenzie who works on tech, media, and telecom cases.
But that won’t stop a Democrat-majority FCC from trying to bring back the rules. “Will the current administration and FCC avoid regulating net neutrality because of the prior administration’s determination?” said Newman. “No. They don’t care. This order is a clear statement of intent to pursue a federal policy of net neutrality that’s directly contradictory to the Trump administration.”