Harris White House Not Seen Making Big Telecom Policy Turns From Biden Administration

A Harris administration would likely mean some different faces at agencies, predicted Gigi Sohn, Benton Institute for Broadband & Society senior fellow. For the most part, agency heads were Biden picks and Vice President Harris, the Democratic nominee for president, didn’t have much say, Sohn said. But Harris, Sohn believes, has her preferences and relationships. Indeed, should FCC Chairwoman Jessica Rosenworcel step down, it’s not automatic that either of the two remaining Democratic commissioners would replace her, Sohn said.

FCC chairs often leave at the end of the term even when a party keeps the presidency. However, Harold Feld, Public Knowledge senior vice president, said if Harris is elected, Rosenworcel could probably remain chair as long as she wants. Rosenworcel has been circumspect about her future in a Harris administration (see 2408080050). Former FCC Enforcement Bureau Chief Travis LeBlanc, now a partner at Cooley, is a former staffer of Harris’ and widely seen as a possibility for chair in a Harris administration. He didn't comment.

An FCC under a Harris administration would likely make up for time the current agency was without a majority of Democratic commissioners, said Ishan Mehta, director of Common Cause’s Media and Democracy program. The FCC “was fighting with one hand behind its back for a substantial part of the term,” Mehta said. While the agency did a lot under those circumstances, “you could really feel the change in momentum” once Commissioner Anna Gomez arrived and provided a third Democratic vote. Making up for lost time probably would mean continuing initiatives the current FCC started, such as defending net neutrality, acting on AI ads, and addressing media ownership regulation, Mehta said.

It would be “very tough” for the current agency to resolve those matters before a new administration comes in, Mehta said. The Rosenworcel FCC hasn’t yet completed the 2022 quadrennial review (QR) (see 2312260063). The traditional “pencils down” policy when a presidential election is imminent and the possibility that a new administration could use the Congressional Review Act to overturn recently-issued FCC rules makes a substantive 2022 QR order by the current FCC less likely as time passes. Common Cause and other public interest groups have pushed for a 2022 QR order that focuses on gathering ownership diversity data, while broadcasters told us they’re concerned a future Democratic Party-controlled FCC could tighten rules around joint sales agreements and other sidecar arrangements.

Rosenworcel has also faced considerable pressure from leading congressional Democrats to reopen a 2014 proceeding on reclassifying linear streaming services as MVPDs (see 2310180067). While Rosenworcel has repeatedly and explicitly said the agency lacks the authority to do that, a future chair may not hold the same view, broadcast industry officials told us. Commissioner Geoffrey Starks supports reopening the proceeding, a Starks aide said last year (see 2310050047).

Numerous FCC watchers told us they expect a Harris FCC would pursue restoration of the affordable connectivity program (ACP) and broadband infrastructure efforts. The past two Democratic-controlled FCCs pushed broadband infrastructure, and the ACP enjoyed bipartisan support, said Strand Consult Executive Vice President Roslyn Layton, who was part of Trump’s transition team in 2016. “It really fits into the Harris-Biden platform about lowering costs” for consumers, Layton added.

In addition, an FCC under Harris would likely look to continue female-centered programs begun under Rosenworcel, the agency’s first female permanent chair, former Rosenworcel aide Kate Black said in an interview. “You can’t underestimate the power of [Harris] being the first woman president,” said Black, now a strategic advocacy and public affairs consultant. For instance, she noted FCC proceedings on the Safe Connections Act, aimed at protecting domestic violence survivors using connected cars (see 2404080072) and the recent Missing and Endangered Persons alert code (see 2408070047) as indications of the direction an FCC under Harris might take. “I would not be surprised if we saw further movement on technology needs for survivors of domestic violence, sexual violence, stalking,” Black said.

SCOTUS Effect?

It's widely expected a Harris FCC would continue pursuing net neutrality rules by defending the current order in court and possibly other methods. In the wake of recent U.S. Supreme Court rulings on agency deference and agency enforcement, the FCC may have to try alternate strategies to make progress on policies furthering net neutrality, Mehta said. "I expect agencies to be creative and see what sticks.” Layton said the FCC could target practices such as throttling or blocking through enforcement actions.

A Harris administration would try to move quickly to have a full FCC, if Rosenworcel were to step down, as has been the tradition, Jonathan Cannon, R Street Institute technology and innovation policy counsel, said. A Harris FCC, Cannon added, presumably wouldn't let court challenges dissuade it. SCOTUS decisions limiting agencies' statutory interpretations wouldn't seem to be a deterrent to agencies moving forward with rulemakings, he said. "They are going to try a lot" and see what sticks.

Agency action in the next administration will be somewhat dictated by the Supreme Court’s Loper Bright and Jarkesy decisions, though there is hope agency heads “would still be bold,” Sohn said.

A Harris White House would probably continue Biden’s strong antitrust approach, as that’s been a success of the Biden administration, Sohn said. Harris would be unlikely to push out FTC Chair Lina Khan, Sohn noted, as that would be unpopular. Biden also has been a champion of communication service affordability and digital equity. Harris almost surely feels the same, Sohn said. That could result in an FCC chair under the Harris administration who acts on revising Universal Service Fund contributions and distribution, she said.

Harris has been a strong ACP supporter and an advocate of the broadband equity, access and deployment (BEAD) program, and as Minnesota governor, vice presidential candidate Tim Walz has talked about connecting Minnesotans as a priority, so those affordability and digital inclusion priorities would likely continue, Feld said.

Expect to see continuation of consumer-oriented FCC proceedings under a Harris administration, such as the junk fees proceedings and proposed ban on bulk billing arrangements between internet service providers and multi-dwelling unit owners, Summit Ridge Group founder Armand Musey predicted. With courts suggesting that net neutrality might be overturned, a Harris administration might be willing to try to craft a compromise, Musey said.

Given Walz's support of municipal broadband as Minnesota's governor (see 2405240011), Christopher Ali, Pioneers Chair in Telecommunications at Penn State University, said muni broadband support could be part of a Harris administration's agenda. He said Harris has had broadband in her Biden administration portfolio, and thus is familiar with the issues. That could mean broadband would get more attention in a Harris White House, Ali said. The Biden administration has been visible in announcing BEAD grants, but otherwise lets NTIA call the policy shots. "I would love to see more attention, more elevation of the issues." Ali said a change in House and Senate composition could prompt ACP renewal.

Encouraging municipal broadband efforts was part of the Democratic platform in 2020 and could also be a focus of a Harris-overseen FCC, Layton said.

It's not clear what levers the White House can pull to support muni broadband other than the bully pulpit, Sohn said. Congress would have to preempt state laws that limit muni broadband and “that ain’t happening.”

Big Tech Friendly?

One big potential change from the Biden administration is that its leader is a Californian and closer to the tech industry, Musey noted. That could portend a greater willingness for the FCC to pursue spectrum sharing. Silicon Valley voices were a big part of the 2012 President's Council of Advisors on Science and Technology report that was influential in the CBRS approach, for example. If there’s a Dish Network bankruptcy, a Harris administration could also be interested in trying to ensure spectrum doesn’t go to the major carriers or one party, but that new entrants get access, Musey said.

While Big Tech might have more of an ear in a Harris administration, that wouldn't mean an end to current legislation targeting tech companies, Sohn predicted. "Even among Democrats, the halo is off Big Tech," echoed Feld, pointing to the lack of Democratic complaints about the Google search monopoly court verdict.

Harris as vice president has seemed to take a moderate policy approach while also trying to distinguish herself from Biden, so it's unclear what her stance would be as president, R Street's Cannon said. As such, affordability and USF reforms could be tech, media and telecom area priorities for the White House, he said. The FCC hasn't been a Biden White House priority, evidenced by how long it took to get a permanent chair and the relative lack of attention the White House has paid to broadband issues, he said. Harris potentially could be more vocal in those areas and a champion of digital divide issues.

While Trump is bullish on deregulation and populist immigration ideas, Harris' governing philosophy isn't clear yet, Mark Jamison, American Enterprise Institute nonresident senior fellow, said. However, it's unlikely she will depart from the Biden administration and Democratic Party on telecom and tech issues, according to Jamison, who served on Trump's 2016 FCC transition team. Harris will likely continue defending net neutrality in court, he said, adding that he also expects a continued push for NTIA to regulate broadband companies. That could include required price discounts for low-income households, he said. Jamison said a Harris administration also might lean toward antitrust action against Big Tech aimed at shrinking its size and influence, rather than an approach focused on consumer interests. A Harris administration also could encourage European regulation of tech given that regulators there would have more authority than those in the U.S., he said.

"Given the Vice President’s leadership in the Internet for All agenda, we would anticipate that a Harris administration will want to keep its foot on the gas to ensure the deployment of broadband as quickly as possible through the BEAD and middle mile programs," Incompas President Angie Kronenberg said in an email. The group expects an emphasis on "fast and affordable deployment." Accordingly, "INCOMPAS is working to support the FCC’s effort to modernize the pole attachment rules so that larger deployments will become more predictable and efficient," Kronenberg said, adding that the FCC's ongoing rulemaking could be completed before the end of this year. "Similarly, we continue to urge the agency to address the availability of the lower 12 GHz band for two-way fixed service, which also could be used in the BEAD program to deliver connectivity in areas where fixed wireless access would be an effective option for connectivity."