IRAC Fix, More FCC Delegated Authority Seen in Cards for Biden Administration
Expect to see fewer big interagency spectrum disputes under the President Joe Biden administration, and the FCC taking a lot more action on delegated authority, with the commissioners being split 2-2, agency watchers said in a Georgetown University-hosted webinar Thursday looking at likely policy issues for the next commission. Many said the 2-2 commission won't inherently lead to political deadlock.
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Spectrum policy isn't likely to shift significantly with the next FCC, though Democrats are somewhat more favorable to unlicensed spectrum and sharing, said Blair Levin, Brookings Institution nonresident fellow. The 2-2 split will delay but not stop the "inevitable" broadband re-reclassification, said telecom lawyer Bryan Tramont of Wilkinson Barker. It remains to be seen whether it hews to rules of the 2015 net neutrality order, he said. Until Congress adopts net neutrality rules itself, the Biden FCC needs to take back its authority over broadband and start a proceeding to either reinstate the 2015 rules or start new ones and "stop the pingpong game," said Gigi Sohn, Benton Institute for Broadband & Society senior fellow. Such an agency move could "bring everybody to the legislative table," she said. One hang-up with a 2-2 FCC will be in transaction reviews, which aren't going anywhere, she said.
The Chairman Ajit Pai administration had 60% of items pass unanimously, showing there are areas where the political sides can work together, said Targeted Victory Vice President-Public Affairs Nathan Leamer, a former Pai aide. FCC commissioners don't necessarily need to be paired with one another in the confirmation process but could be paired with someone from another agency or a federal judge, Sohn said. "Nobody ought to be gloating ... [that] the agency is going to be deadlocked forever," she said. An FCC choice wasn't going to be a top priority for the Biden administration anyway, since it's currently choosing its Cabinet, she said.
Levin said he was "a hopeful pessimist" when it comes to the possibility of bipartisan cooperation in the next FCC, though Congress' dysfunction appears to be moving to the agency. He said procedural changes -- with staff presenting to commissioners particular problems, the data surrounding them and the various options for a solution, to get the agency to focus on those facts -- could maybe address that political polarization. Tramont said some issues will always have splits, but the next commission chairman could build trust and cooperation through "baby steps," such as letting the other political party get credit for something on occasion.
A 2-2 split could benefit the public, forcing the agency to focus on problems instead of various parties staying in their ideological corners, said Mike Saperstein, USTelecom vice president-strategic initiatives and partnerships. "Things we are grappling with are really bipartisan," like broadband accessibility and affordability, he said. He said the next FCC isn't likely to turn from the current path on network security and Chinese technology, judging by comments from Commissioners Jessica Rosenworcel and Geoffrey Starks.
Interagency spectrum disputes have been out of control, and the Biden administration will get back to resolving them internally, giving industry more certainty, Levin said. Leamer said parochial spats over such issues as the 5.9 GHz and 24 GHz bands are due to a misfiring Interdepartment Radio Advisory Committee system, which needs to be fixed.
Sleeper issues that could become big for the next FCC include the general business challenges facing ILECs and a DirecTV/Dish Network combination, agency watchers said. Believing the idea of a nationalized 5G network will end with the Trump administration "is naive," Tramont said. Levin said the lack of good FCC data -- with the agency missing the opportunity the COVID-19 pandemic provided to study what big broadband subsidization needs are -- paired with general court trends away from Chevron deference could make its regulatory work overall become more difficult. Different FCC administrations have repeatedly kicked contribution reform down the road, "though it may blow up," Levin said.
Speakers also had long lists of "should do's" for the next FCC. Sohn said she hoped to see a Biden FCC pick up the broadband data service rules update proceeding that the Pai administration shelved early in its term (see 1701280001) and for it to still move on the pending NPRM on multi-tenant environments (see 1909030022). She said there's a need for an executive agency broadband connectivity office that can, among other things, be a clearinghouse for best practices that states could take from. Leamer said the FCC could offer its staff expertise to other agencies, like the Education Department, that have received broadband connectivity funding but have been less effective in dispersing it. Saperstein said he also hopes Congress will provide the needed federal funding for better broadband mapping.