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Jessica Rosenworcel, chair of the FCC, testifies before Congress.

Jessica Rosenworcel, acting chairwoman of the Federal Communications Commission, testifies at a hearing on June 24, 2020. Two of her current fellow commissioners, Brendan Carr (second from right) and Geoffrey Starks (far right), appeared with her. Digital rights advocates say President Joe Biden must appoint a fifth commissioner in order to restore net neutrality rules, which he urged the FCC to do in an executive order on Friday. (Photo: Alex Wong/Pool/AFP via Getty Images)

Biden Told to Move on FCC Nomination If He Wants Net Neutrality Restored

An unfilled seat on the commission, say advocacy groups, means an executive order from the president has nowhere to go at the moment.

Julia Conley

President Joe Biden on Friday was urged to appoint a third Democratic commissioner to the empty seat on the Federal Communications Commission after the president signed an executive order encouraging the panel to reinstate net neutrality rules.

Fight for the Future was among the advocacy groups making the demand and said Biden "knows full well that none of this can happen" until he rounds out the commission.

"We're grateful that President Biden remains committed to promoting broadband competition and protecting the open internet, and the steps suggested in the executive order are necessary but not yet a done deal," said Matt Wood, vice president of policy and general counsel for Free Press. "The executive order is important, but the processes and personnel to actually move ahead on these priorities are not in place yet."

"To achieve many of the goals laid out in this order, the Biden administration needs to move quickly to nominate a fifth FCC commissioner who doesn't have ties to the telecom industry and will stand up to the ISPs."
—Evan Greer, Fight for the Future

The FCC has been deadlocked with two Republican commissioners and two Democrats since late 2020, when former President Donald Trump appointed former Commerce Department aide Nathan Simington to the commission during the lame-duck session. Republican leader Sen. Mitch McConnell (R-Ky.) pushed Simington's nomination through before losing control of the Senate in January.
 
Although Biden called on the FCC to "restore Net Neutrality rules undone by the [Trump] administration" in his order Friday, the legacy of former Chairman Ajit Pai—who worked as a Verizon lawyer before taking the commission's helm—will live on until the president nominates a third commissioner to fill the seat.
 
Pai pushed through the repeal of Obama-era net neutrality rules in December 2017, giving ISPs the power to block or slow down certain websites and content while opening the potential to charge extra fees for access to "fast lanes" that would betray the bedrock principle of treating content equally online.
 
Fight for the Future and other digital rights groups fought to keep the protections in place, raising alarm that the repeal would give outsized power to the biggest telecom and media companies while throttling smaller businesses, rival startups, and publications.
 
Friday's executive order "has a lot of great words," Fight for the Future director Evan Greer said, "but we need to see some action for those words to mean anything." 

"To achieve many of the goals laid out in this order," Greer said, "the Biden administration needs to move quickly to nominate a fifth FCC commissioner who doesn't have ties to the telecom industry and will stand up to the ISPs, who supports reinstating net neutrality, and who will expand broadband access for everyone.

"Millions of people from across the political spectrum have been calling for years for net neutrality to be restored," she added. "Every day that the Biden administration delays this nomination is another day that vulnerable communities have almost no protection from exploitative telecom giants like AT&T, Comcast, and Verizon."

If Biden does appoint a fifth commissioner, wrote Jon Brodkin at Ars Technica, the FCC could "establish a national framework for protecting net neutrality" instead of relying on states including California and Washington to pass state-level protections, as they did following Pai's repeal. 
 
"The FCC could also use its authority over common carriers to protect consumers in other ways. For example, former FCC Chairman Ajit Pai's net neutrality repeal simultaneously wiped out the Obama-era price-transparency rules that Biden wants to bring back," wrote Brodkin.
 
Sen. Ed Markey (D-Mass.) applauded Biden's order and said he plans to introduce legislation to enforce federal net neutrality protections, tweeting, "We will not stop until net neutrality is the law of the land."
 
"The Covid pandemic has highlighted what we already knew: broadband isn’t a luxury. Like running water and electricity, it is an essential utility that everyone needs," said Markey. "As soon as there are three Democratic Commissioners in place, the FCC must act without delay."

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