Biden’s executive order puts net neutrality back in the spotlight

Earlier today President Biden signed the Executive Order on Promoting Competition in the American Economy, and in it there were several provisions relating to net neutrality. The prior administration’s FCC and FTC rolled back Obama-era rules in those areas, and now there is a clear agenda to restore them.

Directives for the FCC from the order:

(i) adopting through appropriate rulemaking “Net Neutrality” rules similar to those previously adopted under title II of the Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in “Protecting and Promoting the Open Internet,” 80 Fed. Reg. 19738 (Apr. 13, 2015);

(iv) prohibiting unjust or unreasonable early termination fees for end-user communications contracts, enabling consumers to more easily switch providers;

(v) initiating a rulemaking that requires broadband service providers to display a broadband consumer label, such as that as described in the Public Notice of the Commission issued on April 4, 2016 (DA 16–357), so as to give consumers clear, concise, and accurate information regarding provider prices and fees, performance, and network practices;

(vi) initiating a rulemaking to require broadband service providers to regularly report broadband price and subscription rates to the Federal Communications Commission for the purpose of disseminating that information to the public in a useful manner, to improve price transparency and market functioning; and

(vii) initiating a rulemaking to prevent landlords and cable and Internet service providers from inhibiting tenants’ choices among providers.

The FCC is now tasked with reviving the “Broadband Nutrition Label” that was in development in 2016. The label would provide a standardized format for providers to display their price, data allowances and details on performance, similar to the labels you currently see on food at the grocery store.

FCC

The FCC issue also asked to start the process of requiring ISPs to regularly report their prices to the FCC, to help “improve price transparency and market functioning.” As Multichannel News points out, implementing these changes will require adding a third commissioner to the FCC who will vote in favor of these measures, breaking the current 2-2 tie. Current acting FCC chair Jessica Rosenworcel said in a statement that “I welcome this effort by the President to enhance competition in the American economy and in the nation’s communications sector.”

Republican FCC commissioner Brendan Carr would be expected to have a no vote on many of these policies, and says that this order “seems to double down on price controls, government-run networks, and monopoly-style regulations—actions that would only make it harder for smaller providers and new entrants to compete.”

While ISPs like Comcast and Verizon have not yet responded to requests for comment from The Verge, cable industry lobbying groups quickly put out their own information.

Speaking for a group that represents “small and medium-sized cable operators,” American Communications Association president Matthew Polka chose to largely ignore everything in the order. Instead his statement takes aim at what he sees as a lack of competitive market for another target, studios and broadcast stations, in a statement that says “Every day our members are unfairly leveraged by large video programmers and broadcast station groups, causing our customers’ video rates to soar…members fear that dominant Internet platforms and powerful streaming services may choose not to make their services available to the subscribers of some smaller ISPs.”

The NCTA counts Comcast, WarnerMedia, Disney, Charter and Cox among its members and is ostensibly in favor of an “open internet,” as long as no one tries to classify broadband as a utility or passes any rules that would make sure it stays that way. The cable industry group issued a statement (with on name attached) that says “We are disappointed that the Executive Order rehashes misleading claims about the broadband marketplace, including the tired and disproven assertion that ISPs would block or throttle consumers from accessing the internet content of their choice.”

Similarly, the CTIA represents the interests of its member wireless carriers and is coming out against the order. In its own statement the association is claiming “The highly regulatory approach outlined in today’s order unfortunately risks harming consumers by distracting from bipartisan efforts to close the digital divide, inhibiting new competitive choices and innovation, jeopardizing new job creation, and needlessly risking our nation’s future technological leadership.”

On the other side, Free Press VP of policy and general counsel Matt Wood says “The FCC needs to reverse the damage done by the Trump administration, which presided over rising prices and declining investment in broadband while pretending that a do-nothing deregulatory approach would solve these problems…When the Trump FCC abandoned the proper legal framework and policies in 2017, people of every political stripe overwhelmingly opposed that repeal. When we finally have a full and functioning FCC dedicated to promoting the public interest again, the agency can get the job done — taking the kinds of steps outlined in today’s executive order and more.”