Who Had the Most Fun at the Oversight of President Biden's Broadband Takeover Hearing?

The House Commerce Committee's Subcommittee on Communications and Technology held a Federal Communications Commission oversight hearing that included testimony from each of the five (yes, there are five now) FCC commissioners. A partisan tone was set by the get-go as the title for the hearing was "Oversight of President Biden's Broadband Takeover." The key questions for the Republican Members of the panel going into the hearing were:

•  America’s broadband networks are performing well, why is it necessary to impose heavy-handed regulations on them?
• How does the FCC plan to enforce its new digital discrimination rules?
• Will the FCC try to impose a 30-year-old law on streamers? 

Subcommittee Chairman Bob Latta (R-OH) kicked the hearing off saying, "Since September, FCC Chairwoman Jessica Rosenworcel has pursued a federal government takeover of the internet. First, the FCC plans to reclassify broadband as a common carrier under Title II of the Communications Act. This effort is unnecessary and simply defies logic." Chairman Latta also chastised the FCC's passage of digital discrimination rules which he said go beyond Congressional intent. "Among other provisions, the rules adopt a ‘disparate impact’ standard for determining violations rather than focusing on intentional discrimination. The FCC’s new rules permit the FCC to micromanage the broadband industry and dictate to providers where to build, how much to charge, and what kind of services to offer. Burdensome and expansive regulations like these will only discourage broadband buildout at a time when Americans need it most."

Full Committee Chair Cathy McMorris Rodgers (R-WA) echoed Chairman Latta saying, "The Biden FCC, under Chairwoman Rosenworcel, is once again attempting to regulate broadband as a public utility under Title II of the Communications Act of 1934. This heavy-handed regulatory approach was designed to regulate monopolies, but today’s competitive broadband market is far from a monopoly. This is apparent, as the Chair’s Order plans to forebear from twenty-seven provisions in Title II and more than 700 regulations." Concerning rules to eliminate digital discrimination, Chair Rodgers said, "These new regulations will put burdensome requirements on our nation's broadband providers, leading to government bureaucrats micromanaging Americans' Internet access. Rather than focusing on intentional discrimination against historically marginalized groups, as Congress intended, the Biden administration is once again unilaterally expanding the power of unelected bureaucrats under the guise of equity."

Commerce Committee Ranking Member Frank Pallone, Jr. (D-NJ) offered a different take. "The FCC, under the leadership of Chairwoman Rosenworcel, has played an outsized role in making our broadband aspirations a reality. The FCC built the successful Affordable Connectivity Program that is making broadband more affordable for more than 22 million American families. It also recently released the third version of the National Broadband Map, which will help states identify the unserved and underserved areas eligible for the $42 billion in broadband funding. The Chairwoman is also putting consumers first by examining junk fees and data caps, requiring rebates for consumers subjected to television blackouts, and increasing the minimum speed for broadband service. The Commission is also putting consumers first by proposing a rule to restore Net Neutrality. As internet connections are becoming more and more critical to our everyday lives, Americans are tired of spending hours attempting to resolve issues with their broadband service. They are tired of waiting endlessly for a broadband provider to serve their neighborhood. They would welcome a referee on the field. It’s just common sense."

In prepared testimony, Chairwoman Rosenworcel highlighted a dozen efforts the FCC has been engaged on including:

•  Restoring oversight over broadband and reinstating a national standard of net neutrality protections,
• Implementing first bipartisan civil rights law of the digital age,
• Connecting more than 22 million households through the Affordable Connectivity Program,
• Creating and updating the National Broadband Map, and
• Allowing use of E-Rate funding to help connect students on school buses and free hotspots at home.

Keeping with the theme of the hearing's title, Commissioner Brendan Carr said, "The Biden Administration’s entire approach to the Internet—its broadband agenda, if you will—can be boiled down to one word: control." He pointed to the FCC's network neutrality proceeding and rules to eliminate digital discrimination as examples of this agenda. "While the Biden Administration is pouring time and resources into those unlawful power grabs, it is also failing to make meaningful progress on the communications issues that would make a real and positive difference in the lives of everyday Americans.  Spectrum is just one example that I will address in my testimony.  Put simply, at a time when our global competitors are racing to lead the world in wireless, the Biden Administration is stuck in neutral.  We must continue to free up the airwaves necessary to maintain U.S. leadership in wireless and advance our geopolitical interests."

Commissioner Geoffrey Starks highlighted the success of the Affordable Connectivity Program. "I am proud of the FCC’s leadership in working to make broadband universally accessible and affordable, aligning with Congressional goals." Of late, he said, the FCC has "taken historic steps towards ensuring the fundamental fairness of the internet.  We commenced a proceeding to revive longstanding principles against blocking and throttling of legal content, and paid prioritization that can compromise innovation.  These efforts can protect consumers in their access to broadband, an essential service, while also enhancing our security and aligning broadband policy with national consensus.  We also implemented the Bipartisan Infrastructure Investment and Jobs Act’s directive that we set forth rules to prevent and eliminate digital discrimination.  Stopping digital discrimination anywhere will empower individuals everywhere."

Commissioner Nathan Simington's testimony boiled down to four points:

1. It is only through commonsense, bipartisan policymaking that we can ensure that the needs of all consumers of broadband are served.  
2. The FCC has shifted focus to partisan, unnecessary and burdensome policy frameworks.   It should instead focus its efforts on more urgent priorities that benefit American consumers instead of furthering partisan goals.  
3. It is crucial that the FCC’s spectrum auction authority be restored expeditiously to preserve U.S. leadership.  
4. Hundreds of millions of devices in active use in this country are susceptible to known security vulnerabilities, exposing Americans to theft of private data and to attacks on the integrity of our public and private networks. The FCC can and should prioritize addressing this and other more pressing issues.   

In her first circus—scratch that—in her first rodeo as an FCC commissioner, Anna Gomez testified, "I believe the FCC does best when its work honors the needs of the people it serves.  That means connecting everyone everywhere to affordable, reliable, high-speed broadband.  My experience engaging with the public over the past two months as a Commissioner has demonstrated to me the ever-increasing importance of the Commission’s work.  All stakeholders, from individuals, to industry, to civil rights and public interest groups – each one has underscored the centrality of broadband to our lives.  The path to success for the next generation without access to reliable broadband is a treacherous road as compared to those with access."

Notably during the question-and-answer session that followed, Rep. Yvette Clarke (D-NY) said she intends to introduce legislation to fund the ACP before the end of the year, though it remains unclear if that bill would gain Republican support. None of the Republicans on the subcommittee asked the commissioners about the program. Asked when the FCC will need to alert providers that they have to send notices to ACP customers about the benefit ending, FCC Chairwoman Jessica Rosenworcel indicated that would need to happen early in 2024.

The hearing got a little feisty when Chairman Latta and Chair Rodgers questioned Chairwoman Rosenworcel and reinstating net neutrality rules. Did repeal of the net neutrality rules result in the Internet being delivered "one word at a time"? Did it break the Internet as we know it?  "No," answered Chairwoman Rosenworcel, "but that's a result of more than about a dozen states stepping in and developing their own net neutrality laws." In one exchange, Chair Rodgers cut off Rosenworcel from answering her question. 

Chair Rodgers also asked why the digital discrimination rules are so broad and "by what authority did the FCC act?" Chairwoman Rosenworcel defended the rules, saying they are in line with the language in the Infrastructure Investment and Jobs Act mandating that the FCC eliminate digital discrimination.

"Congress gave us a very broad mandate in Section 6506 of the bipartisan infrastructure law that told us conclusively to prevent and eliminate digital discrimination," she said. "You did not limit it only to Internet service providers. You didn't limit it to only some terms and conditions. The language in this statute is exceptionally broad."