In this “Age of the Administrative State,” federal agencies have incredible latitude to impose policies without much direction or input from Congress. President Barack Obama fully pulled off the mask in 2014, when he announced “[w]e are not just going to be waiting for legislation,” declaring “I’ve got a pen, and I’ve got a phone.” Subsequent presidents have similarly discovered that they had pens and phones, too.
But that’s not how things are supposed to work. Sometimes—some would say most times—Congress needs to step in as voters’ elected representatives and legislate the country’s priorities.
In some cases, Congress has fiddle-faddled on important telecommunications issues that only Congress can address, and we’re now seeing some of the consequences of this dithering. The Affordable Connectivity Program (ACP) will be out of money next month. The Federal Communications Commission (FCC) has been taking steps to unwind program. More than a year ago, the FCC’s spectrum-auction authority expired, effectively blocking the agency’s ability to conduct spectrum auctions or issue new licenses.
In other cases, Congress has not provided the agencies with a clear policy direction. The Infrastructure Investment and Jobs Act (IIJA) directed the FCC to adopt rules to prevent “digital discrimination of access” based on income level, race, ethnicity, color, religion, or national origin. The law did not, however, clearly define what is meant by either “discrimination” or “access.”
Over the years, Congress has had many opportunities to legislate whether broadband internet should be regulated under Title I “light touch” rules or Title II common-carrier rules. The Obama administration moved to shift broadband from Title I to Title II. It then went back to Title I during the Trump administration and is now on-track to be reclassified under Title II by the Biden administration. Rather than swinging back-and-forth with whichever party is in the White House, Congress would best serve its constituents by settling the matter once and for all.
Toward that end, I offer a modest proposal (a win-win, if you will) for Congress to unstick a part of the telecom logjam. My proposal amounts to less than an omnibus bill, but more than a one-hitter.
- Fund the ACP for the next three years;
- Restore the FCC’s spectrum-auction authority;
- Clarify the definition of digital discrimination; and
- Classify broadband internet under Title I of the Communications Act.
Funding the ACP should be the easiest. FCC Chair Jessica Rosenworcel has been pleading with Congress to continue funding the program. The International Center for Law & Economics (ICLE) argues that, while not perfect, the ACP is a much better way to provide broadband to low-income households than the alternatives, such as rate regulation or municipal broadband.
Before the FCC began winding down the ACP, more than 23 million households were receiving the $30-a-month subsidies. Ending the program will be a $360 annual hit to those households. For some, that will be a make-or-break decision. In a presidential election year, it’s a near-certainty that President Joe Biden would sign a bill making broadband cheaper for millions of families. Similarly, there are probably more than a few swing-state members of Congress of both parties who would like to bring home a little bacon to their voters.
Restoring the FCC’s spectrum authority should be easy. Spectrum’s a big deal. We need more spectrum to roll out 5G technologies, prompting folks on both the left and the right to invoke national-security concerns as a reason to bring back the auctions. And, as with the ACP, Chair Rosenworcel has been pushing Congress to restore authority. But while people who get the ACP subsidies know they’re getting a subsidy, most people don’t spend even a second thinking about spectrum, and even fewer think about spectrum auctions.
Even though these are straightforward and relatively modest proposals, the upcoming elections mean even “no-brainer” policies can get dashed by partisan considerations. Put simply, Republicans don’t want to give President Biden or Democrats a “win” on which they can campaign. And you can bet that they will tout restoring the ACP and auction authority as big wins. So, we also need to throw a bone to Republicans.
The infrastructure act made a mess of digital discrimination with vague and somewhat contradictory language. The FCC took advantage of this ambiguity and ran with it by applying a disparate-impact framework that covers nearly every entity and activity associated with the delivery of broadband services.
That’s probably not what the bill’s authors’ intended, but we don’t really know, because there is virtually nothing in the legislative history indicating the drafters’ intent.
Our modest proposal suggests that Congress should add a few words to the federal code to clarify what it meant by “preventing digital discrimination.” In particular, it should limit the scope of digital-discrimination rules to intentional discrimination against a protected trait in broadband deployment.
The bill should also eliminate income as a protected trait. ICLE has noted that income is often closely correlated with other factors that influence broadband-deployment decisions, such as population density. Using income as a basis to allege discrimination runs the risk of generating false positives that find discrimination even where it wasn’t intended or doesn’t exist. Tightening the statutory definition will go a long way toward reducing the regulatory burden and uncertainty facing the industry under the FCC’s current rules.
The last item is what communications pros would call the “Big Ask”—classifying broadband-internet-access service under Title I’s light-touch regulatory regime. But in reality, it’s not much of an ask at all. Except for a brief period when the FCC classified broadband under Title II with its Open Internet Order, broadband has always been lightly regulated under Title I. The world didn’t improve with the Open Internet Order and the world didn’t end when it was repealed.
More importantly, much of the world seems to have lost its enthusiasm for so-called “net neutrality.” People aren’t searching for the term, and big newspapers aren’t running many net-neutrality op-eds these days, because people won’t read them. Emotions ran high and big dollars were dumped into the political fray over both the 2015 Open Internet Order and the 2018 repeal. A man was sentenced to 20 months in prison for threatening to kill then-FCC Chair Ajit Pai over the repeal vote.
In your last year of college, you may have had an epic spring break at the beach with your friends, and what you can remember was, indeed, memorable. But now, 10 years later, as you’re turning 30 and try to get the gang back together to recreate those good times, you find that times have changed. You’re older, a bit more mature, and the spring break vibes just hit different now.
That’s net neutrality. The world has moved on and net neutrality is about as exciting as a new Carly Rae Jepsen song.
If Congress mandated that broadband be regulated under Title I, the matter would be settled. The FCC would save the enormous rulemaking costs associated with teeter-tottering from Title I to Title II with every change in administration. Broadband providers would have less regulatory uncertainty. Consumers and edge providers would go about their business like they always have.
I’m a much better economist than political prognosticator, but my modest proposal is as good as any likely to get bipartisan support. Like any compromise, everyone gets something they want, and no one gets everything they want.