Biden Administration EO Outlines Contours for Changes in Communications Regulations

Biden Administration EO Outlines Contours for Changes in Communications Regulations

July 9, 2021, Covington Alert

Today, President Biden issued an "Executive Order on Promoting Competition in the American Economy," which is intended to have broad and far reaching implications for the technology and communications sectors, among others. The EO seeks to promote competition by directing or encouraging more than a dozen federal agencies to launch a range of initiatives.

With respect to the communications sector, the EO encourages the Federal Communications Commission (FCC) to consider doing the following:

• Adopt similar "Net Neutrality" rules to the ones that were previously adopted under "Title II" of the Communications Act in 2015 but eliminated in 2017.
• Adopt rules for future spectrum auctions that are designed avoid a concentration of spectrum license holdings.
• Support the development and adoption of 5G Open Radio Access Network (O-RAN) protocols and software.
• Revive the "Broadband Nutrition Label" proposed in 2016 and require providers to report broadband prices and subscription rates to the FCC.
• Prevent internet service providers from making deals with landlords that limit tenant choices.
• Limit excessive termination fees when consumers seek to change services.

Additionally, to make it easier for consumers to get their electronic devices repaired without depending on carriers or manufacturers, the EO encourages the Federal Trade Commission to adopt rules allowing consumers to use third party repair services and do-it-yourself solutions (so-called "right to repair" rules).

It will take some time to assess the Order’s impact. In the meantime, a few preliminary observations are worth noting.

First, none of the communications regulatory provisions of the EO are self-effectuating. Each "encourages" the FCC to take certain actions, consistent with the FCC's status as an independent agency. Because implementing most of these policy initiatives will require formal rulemakings pursuant to the Administrative Procedure Act, the enactment of rules to effectuate these initiatives will take time.

Second, the promulgation of any new rules will require a majority vote at the FCC. Currently the FCC is evenly split with two Democrat and two Republican commissioners, with a fifth commissioner yet to be appointed, let alone confirmed. The Biden Administration also has yet to appoint a permanent FCC chair. In the absence of a fifth commissioner, it is conceivable that the agency will be deadlocked if it must consider controversial policy imperatives. 

Nevertheless, todays EO provides a clear indication of the policy leanings of the Biden Administration, and, given the importance that a fifth FCC commissioner will play the consideration of these issues, it is conceivable that any future appointee will be viewed as sharing them.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Communications and Media practice.