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1 1 (January 12, 2021)

handle is hein.crs/govebmh0001 and id is 1 raw text is: C o g e s o a R e s a r c S e r v k 0 Updated January 12, 2021 The Federal Communications Commission in the Incoming Biden Administration: Issues and New Directions Introduction The Federal Communications Commission (FCC) in the incoming Biden Administration may take different positions on several key topics than the FCC under the Trump Administration, including Section 230 of the Communications Act of 1934, as amended (Section 230), net neutrality, and 5G. The recent confirmation of President Donald Trump's nominee to join the FCC, Nathan Simington, and Chairman Ajit Pai's resignation on Inauguration Day will leave the agency with a 2-2 split between Democratic and Republican commissioners. The FCC typically has five members, with two commissioners and a chairperson from the President's party. Democrats are due to effectively take control of the Senate majority and would typically be handling an FCC nominee of the incoming President's party. Current commissioner Jessica Rosenworcel has been mentioned as a strong contender for agency chairperson. Topics for Likely FCC Action Although there are numerous issues that the new FCC may consider, some issues that are currently under consideration can be expected to remain active, either to reverse current FCC initiatives or to build on existing work. Section 230 Section 230 broadly protects operators of interactive computer services and their users from liability for publishing, removing, or restricting access to another person's content. Criticism of Section 230 has come from both Democrats and Republicans over content moderation decisions; both parties introduced legislation to amend Section 230 in the 116th Congress. On May 28, 2020, President Trump issued an Executive Order on Preventing Online Censorship. The order required the Secretary of Commerce to ask the FCC to initiate a rulemaking to clarify the provisions of Section 230. On August 3, 2020, FCC Chairman Pai announced that the agency would be asking for public comment on the petition for rulemaking. The public comment period on this proceeding closed on September 17, 2020, and on October 15, 2020, Chairman Pai announced that the FCC would move forward with the rulemaking proceeding. However, Chairman Pai did not include the item on the January 15, 2021, commission meeting agenda, so no final FCC order will be promulgated prior to President-elect Biden's inauguration. President-elect Biden has expressed interest in seeing changes to Section 230 to curb misinformation, but has stated he would prefer doing so through legislation rather than the FCC. For additional information about Section 230, see CRS Legal Sidebar LSB10484, UPDATE: Section 230 and the Executive Order on Preventing Online Censorship. Net Neutrality Net neutrality, the policy that required internet service providers to offer equal and nondiscriminatory access to online content, was adopted by the FCC under then- President Obama in 2015 and repealed by the FCC under President Trump in 2017. The issue may again be an active issue for the FCC under the incoming Biden Administration, specifically, repealing the 2017 Restoring Internet Freedom Order that reversed the 2015 order. President-elect Biden's net neutrality policy statement, issued prior to the Democratic National Convention, states that his administration would take strong enforcement action against broadband providers who violate net neutrality principles through blocking, throttling, paid prioritization, or other measures that create artificial scarcity and raise consumer prices. The current Democratic commissioners support this position. What action the FCC takes may depend on who is confirmed by the Senate to fill the final seat on the Commission. Opening the door for a reinstatement of the 2015 rules is a 2019 ruling by the D.C. Circuit Court that stated it would defer in this case to agency expertise regarding the interpretation of the Communications Act of 1934 (see CRS Report R44954, Chevron Deference: A Primer). This would appear to provide a path for the FCC to reinterpret the law. If so, it could pass a declaratory ruling to reverse the 2017 RIFO and reinstate the 2015 Order to reclassify broadband providers from Title I to Title II services. Title I information services are subject to fewer regulations than Title II common carrier telecommunications services. Some experts have cited the heightened dependency on the internet during the pandemic as a driver for the FCC to move beyond a simple reinstatement to also include a prohibition on data caps, interconnection fees, and special rates through a new net neutrality rulemaking. Any action by the FCC could be expected to draw legal challenges. Congress could preempt any FCC action by permanently classifying broadband as a Title II service or impose net neutrality requirements under Section 706 of the 1996 Telecommunications Act. It could also undertake a larger update to the act. For additional information about net neutrality, see CRS Report R40616, The Net Neutrality Debate: Access to Broadband Networks. ittps://Crsreports.cong ress.g(

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