FCC Net Neutrality Moves Could Come With Other Action on EO
Items adjacent to net neutrality in President Joe Biden's executive order issued earlier this month (see 2107090006) could get packaged together with net neutrality or at least all be on deck for FCC meetings late this year or early 2022, experts and interested parties told us. Some think the agency may try to move some less controversial items, such as broadband “nutrition labeling,” while it still has a 2-2 party split and acting chairwoman. Many think work is underway on net neutrality (see 2107200036).
Former Commissioner Mike O'Rielly said the agency is likely working up items on all the aspects of the EO. The EO ideas presumably came from conversations between the FCC and White House and from cross-pollination of staff. He said it's likely those discussions led to a list of items the FCC “is probably pretty warm to do.” He said the multi-tenant environment issue has been looked at multiple times and MTE could go straight to a draft order, though others might need an NPRM first.
Analyst Paul de Sa said some items in the EO fit better with net neutrality -- like broadband nutrition labeling -- while others could end up packaged separately. He said as a practical matter, having items on parallel tracks can help get some of them done more quickly and with consensus vs. lumped together. The agency didn't comment Friday.
One possibility is a vote to reinstate the 2015 open internet order as soon as a third FCC Democrat is appointed, said TechFreedom General Counsel Jim Dunstan. He said odds fall if the agency has a permanent chair who's more left-leaning than acting Chairwoman Jessica Rosenworcel and more interested in delving into rate regulation. He said some items, like a broadband nutrition label order, could get bipartisan buy-in if the FCC eschews requiring disclosure about network management and focuses on core functions like price, speed and policies on such issues as throttling and blocking. Commissioners voted 3-0 in 2017 to approve a notice of inquiry on bettering broadband deployment, competition and innovation in residential and commercial MTEs (see 1706220036).
The “best, most immediate path” for labeling is through congressional action, but if Capitol Hill doesn't act the FCC surely will, said Consumer Reports Senior Policy Counsel Jonathan Schwantes. Labeling could come up in a House infrastructure package if leadership decides the Senate package doesn't go far enough. Schwantes said broadband labeling, if ultimately at the FCC, would likely be part of a net neutrality proceeding, which could come this fall or winter.
A former eighth-floor official said it would be surprising if the acting chairwoman directed staff to start working on these issues except net neutrality since they're lower profile and Rosenworcel would be unlikely to want to expend the staff resources now. Net neutrality is a different story and priority, and it wouldn't be surprising if she has asked the Wireless Bureau to put together at least the framework for an NPRM, he said.
Even a 2-2 FCC might find some agreement on some pricing transparency elements, said Joshua Stager, New America's Open Technology Institute deputy director-broadband and competition policy. The agency might opt to issue one or multiple NOIs just to refresh existing dockets on some matters in preparation for an eventual rulemaking, he said.
National Apartment Association Manager-Public Policy Jodie Applewhite said the MTE issue coming up in Biden's EO wasn't surprising, but NAA isn't expecting FCC action before a permanent chair and additional commissioner. She said it will lobby legislators and regulators in the meantime, before any proposed legislation or rulemakings come before them “to make sure they're aware of our industry standpoint.”