Following the January 20, 2021 inauguration of President Joe Biden and Vice President Kamala Harris, the new Administration is poised to both quickly counter many deregulatory initiatives promulgated under the prior Administration and begin crafting new rules consistent with the new Administration's policy goals.
Although the Democrats control the White House and Congress, their majority in the House of Representatives is slim and they will need Vice President Harris to cast any tie-breaking vote in the Senate. Given this tenuous control, and with the next Congressional election less than two years away, we expect the new Democratic-led Federal Communications Commission (FCC) to move quickly on matters within its jurisdiction where it cannot afford to wait on legislative action. However, with the current composition of two Democrats and two Republicans on the Commission, adopting major policy initiatives will be difficult until a third Democratic commissioner is appointed by the President and confirmed by the Senate. An additional challenge for the FCC (and other agencies whose actions are subject to appellate review) is that the Federal judiciary, both the federal Courts of Appeal and the U.S. Supreme Court, is far more conservative than it was prior to the Trump Administration.
The success of the new Administration's telecom agenda will turn on the leadership of decisionmakers in Congress and at the FCC and the National Telecommunications and Information Administration (NTIA).
Congress. The Senate Committee on Commerce, Science and Technology has jurisdiction over communications matters as well as consumer products and services, and now will be led by Sen. Maria Cantwell (D-WA) who, along with Ranking Member Sen. Roger Wicker (R-MS), has deep experience in telecom matters. In the House of Representatives, the Committee on Energy and Commerce will continue to be led by Rep. Frank Pallone (D-NJ), and Rep. Mike Doyle (D-PA) will remain as Chair of the Subcommittee on Communications and Technology. Telecom issues of highest priority for Democrats in Congress include the new Administration's proposed $20 billion for rural broadband infrastructure; spectrum policies that balance the priorities of commercial 5G mobile services with the spectrum needs of government and public safety agencies; Net Neutrality protections for consumers; and promoting U.S.-based radio technology and manufacturing for secure networks.
FCC. The FCC will be responsible for overseeing the disbursement of tens of billions of dollars for broadband deployment and affordability programs, and for developing and implementing a host of other critical policies, including access to spectrum, network infrastructure and security, broadband adoption, Net Neutrality, public safety, social media regulation, and media ownership.
President Biden yesterday designated Commissioner Jessica Rosenworcel as Acting FCC Chairwoman until a permanent Chair is nominated by the President and confirmed by the Senate. With the January 20 departure of former Chairman Ajit Pai, Democrats and Republicans now each hold two seats on the five-member FCC, giving Democrats control over the agenda but lacking a majority. This split likely will result in more contentious agenda items being teed up but not voted on until the Democrats hold their third seat. No information has yet been made public about the nomination of either the permanent FCC Chair (which could be either Commissioner Rosenworcel or the other sitting Democratic Commission, Geoffrey Starks) or the third Democratic Commissioner.
NTIA. NTIA, the agency that advises the President on telecommunications and information policy issues and is responsible for managing Federal government spectrum use, is likely to play a more active role under the Biden Administration than it did under the previous Administration. Evelyn Remaley has been named acting chief, following the departure of the Trump Administration's acting chief, Carolyn Roddy. NTIA's focus will continue to be on expanding broadband access and adoption and coordinating Federal spectrum use.
As an initial step towards pursuing its regulatory agenda, the new Administration took immediate action to delay rules adopted by the prior Administration that have not yet become final.
Shortly after being sworn in, the President directed, effective immediately, that (with certain exceptions) the heads of all Executive Departments and agencies, including the FCC, not propose or issue any rule or notice of proposed rulemaking, or take other significant regulatory actions, until a department or agency head appointed or designated by President Biden reviews and approves the rule or action. The freeze applies broadly, and will apply to any guidance document or substantive action by the FCC that is normally published in the Federal Register and is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, notices of proposed rulemaking, and statements of general applicability and future effect that set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.
- Rules that have been sent to, but not published in, the Federal Register must be immediately withdrawn for review and approval of a department or agency head appointed or designated by President Biden.
- With respect to rules that have been published in the Federal Register or issued in any manner, but have not yet taken effect, the department or agency head must (i) consider postponing the rules' effective dates for 60 days to allow for review of questions of fact, law, and policy; (ii) for any such postponed rules, during the 60-day period, consider opening a 30-day period to allow interested parties to provide comments about issues of fact, law, and policy, and consider pending petitions for reconsideration involving such rules; and (iii) as necessary to continue to review questions of fact, law, and policy, consider further delaying such rules beyond the 60-day period.
- After the 60-day delay in effective date, for rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; for rules that raise substantial questions of fact, law, or policy, agencies should take further action in consultation with the Office of Management and Budget.
Modernizing Regulatory Review
In addition to announcing the regulatory freeze, the White House ordered the Office of Management and Budget to consult with executive departments and agencies and to recommend ways to improve and modernize regulatory review. The recommendations should “provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”
The order specifies that the recommendations should, among other goals, (i) ensure the regulatory review process “promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects”; and (ii) include procedures that “take into account the distributional consequences of regulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, to ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”
Recommendations adopted by OMB following the review process are likely to be incorporated into the FCC's rulemaking process, and implemented by the FCC's Office of Economics and Analytics.