6:05am PT by Eriq Gardner
How Joe Biden May Reshape the FCC
If you haven’t of late thought much about the Federal Communications Commission, which regulates all U.S. radio, TV, satellite and cable communications, you’ll be forgiven — during the Trump years the agency became a nonfactor, slipping into a regulatory coma of sorts.
Most notably, the FCC under Chairman Ajit Pai’s leadership retreated from net neutrality — the principle that internet providers shouldn’t discriminate when handling the flow of digital traffic — while its “light touch” policing didn’t go much further than attempts to rid the country of the scourge of robocalls and overseeing an auction of wireless spectrum. Anyone in the media industry pursuing a merger, or blacking out programming, or even swearing on TV had little to worry about from the media industry’s ostensible cops.
The priorities of the FCC figure to change soon with Democrats in leadership. President-elect Joe Biden will be able to appoint a new chairman to lead the agency. Whether that’s Mignon Clyburn (a former FCC commissioner who’s now on the board of Lionsgate), Jessica Rosenworcel or Geoffrey Starks (Democratic commissioners currently serving at the agency) or someone else, such a change in leadership will happen just as the Supreme Court hears a case about whether the agency has done enough to ensure diversity in setting media ownership rules. “I think we are going to see an agency that returns to governing instead of de-governing,” says Tom Wheeler, who served as FCC chairman between 2013 and 2017.
Expect the FCC to work quickly to expand broadband access given the amount of remote working and remote schooling during the pandemic. Inequities in connectivity may become the defining focus of the agency during the forthcoming Biden years. That, in turn, may mean an examination of the affordability of broadband networks and Wi-Fi and whether subsidies would help disadvantaged consumers.
As for what the FCC could soon do to make its mark on the entertainment industry, insiders are watching a years-old proposal now being pushed by CBS, NBC, Fox, and ABC affiliates to review "virtual MVPDs" (“multichannel video programming distributor”). Ramifications are yet to be seen, but the rulemaking proceeding (started by Wheeler and never officially closed) could be meaningful to streamers, which aren’t now regulated to the extent cable operators are. If the definition of an MVPD includes those delivering programming online, it is possible that program access rules get adopted to ensure vibrant competition in the streaming world. For example, certain streamers could be required to make some of their owned content available to competitors. In the past, companies like Amazon warned of "unintended consequences" but that was before streaming apps really took off, and the industry started seeing friction in negotiations to deliver them. John Orlando, a former executive vp at CBS who founded the consultancy Point52, notes: “Streaming has grown dramatically since this was first proposed, and I do anticipate some sort of effort by the FCC to get involved.”
The FCC’s Oct. 15 statement that it would “clarify” Section 230 of the Communications Decency Act — a 1996 law that gives online platforms immunity over content posted by third parties — is likely all but dead. Instead of stepping in to police social media companies for daring to moderate, the agency may instead attempt to revive net neutrality rules that frown on prioritization of paid traffic. If the FCC gets aggressive, it could establish rules that more explicitly bar, say, the throttling of Netflix, or as California did, attack "zero-rating" to the degree it potentially interferes with pay-TV bundling in internet subscriber plans. Other potential regulatory goals include rules ensuring data privacy for consumers and maybe even ones addressing climate change. While some communications veterans chuckle at the thought of a role for the FCC on the environmental front, the agency could get creative when reviewing license applications, renewals and transactions by requiring applicants to mitigate carbon pollution.
Some of the FCC’s coming efforts might require legislative assistance. Classifying broadband as a utility in order to establish net neutrality rules, for example, would almost certainly trigger fresh court battles. And with Trump appointed judges everywhere, many federal agencies may find that when it comes to regulation, courts are less willing to be deferential to bureaucrats who weren’t elected to office, like those in the FCC, and who as would be argued may be pursuing an agenda beyond congressional mandate. “You may end up seeing the Supreme Court taking over as chairman of the FCC,” says Wheeler with only a tinge of sarcasm. “Nothing is final until the Supreme Court says it is final.”
A version of this story appeared in the Nov. 18 issue of The Hollywood Reporter magazine. Click here to subscribe.