FCC headquarters with red spray paint

Mark Van Scyoc/Shutterstock (Licensed) remix by Jason Reed

Midterms 2022: Democrats’ feckless telecom reform efforts are about to permanently be killed

Democrats wasted two years.

 

Karl Bode

Tech

For the better part of the last generation, U.S. regulators have been a glorified rubber stamp on the nation’s telecom and media monopolies: eagerly stripping away consumer protections, turning a blind eye to widespread billing fraud, and routinely signing off on competition and job-eroding industry consolidation. All while paying lip service to reform.

There was hope for that to change when Democrats took over Congress and the White House in 2020, pledging to bring back net neutrality and tackle the digital divide that became apparent during the COVID-19 pandemic. But two years later, Democrats have dithered and time is slipping away.

Polls currently suggest the GOP has a solid chance of taking control of the House of Representatives in the 2022 midterm election on Tuesday, with a possible, but more challenging road to taking over the Senate.

Industry watchers and consumer groups say a GOP midterm takeover of Congress could make an already bad situation significantly worse for the U.S. telecom and media sector, resulting in less affordable broadband access, fewer consumer protections, higher prices, and a government that continues to turn a blind eye to the perils of widespread monopolization.

Whatever party holds the presidency enjoys a 3-2 commissioner advantage at the Federal Communications Commission (FCC). But President Joe Biden’s FCC has been gridlocked for almost two years. Republican opposition to Biden FCC nominee Gigi Sohn, a respected consumer advocate and former FCC advisor, is primarily to blame. But Biden also waited nine months to nominate her, squandering any momentum from his election victory. She’s now been in limbo for a year.

Waffling by Sen. Joe Manchin (D-W.V.) left Democratic lawmakers without the 50 votes needed to move the Sohn nomination forward. But Democratic leaders have also been criticized for a general lack of urgency toward getting the nomination over the finish line. 

Without Sohn in place, the Democratic FCC has been unable to reverse many of the unpopular decisions made by former President Donald Trump’s FCC, whether it’s the attack on basic net neutrality protections, the steady elimination of media consolidation rules intended to protect media markets and competition, or the gutting of funding for tribal broadband.

“During the Ajit Pai reign at the FCC, we saw what it looks like when the foxes are running the henhouse,” Brandon Forester, the National Organizer at MediaJustice, told Daily Dot. “Under this administration, which has failed for over a year to get a fifth FCC commissioner, no one is running the henhouse and the foxes—ISPs and media companies—are running rampant.”

If the GOP takes control of the Senate, Sohn’s already flailing nomination would likely be doomed, with any replacement nominees similarly facing congressional gridlock. And Biden, if he wants to get the agency staffed, would need to capitulate to Republican demands that no progressive sits on the FCC. 

Consumer groups say Biden’s delay in Sohn’s nomination helped open the door to smear a reformer and keep the FCC in a state of gridlock that telecom companies are only happy to welcome.

The stalled nomination means the agency not only can’t reverse any of the agency’s Trump-era decisions, it can’t engage in any other essential policymaking deemed too controversial for large corporations or Republican FCC commissioners. It’s an undemocratic gridlock of a key regulator by design, and it’s harming ordinary Americans, Forester said. 

“We have really serious issues that this FCC should be addressing including the modernization of Lifeline (an FCC program that provides affordable broadband and phone service to low-income Americans), the Digital Discrimination rule making, and the potential for future media and telecom mergers,” Forester said.

Competent telecom and media oversight has never been America’s strong suit. Both parties have a long history of turning a blind eye to regional broadband monopolization and its high prices, slow speeds, spotty coverage, and atrocious customer service.

An estimated 83 million Americans live under a broadband monopoly with no alternative provider to choose from. Up to 40 million lack access to broadband entirely. An overall lack of competition means U.S. consumers pay some of the highest prices in the developed world for what’s often substandard access.

The GOP has been particularly dedicated to protecting this broken status quo from accountability or competition. The party dismantled net neutrality, killed popular broadband privacy rules, greenlit competition-eroding and job-killing megamergers (at times without reading deal details), tried to ban community-built broadband networks, and doled out massive tax cuts to telecom giants in exchange for nothing.

Should the GOP take control of Congress, even many of the more modest achievements by the gridlocked FCC under agency Chairwoman Jessica Rosenworcel could be challenged via the Congressional Review Act (CRA), like when House Republicans in 2017 dismantled new privacy rules for broadband providers before they could even take effect.

Knowing this potential outcome, the Biden administration showed little urgency in securing Sohn’s nomination, and even less in defending Sohn publicly from coordinated attacks. Consumer groups lamented “dithering” Democratic strategists for failing to secure the necessary votes, and for further delaying any confirmation vote with redundant hearings.

Rarely are leaders from either party capable of candidly acknowledging that telecom monopolies exist and are a problem, much less proposing meaningful reform. Sohn is built differently, industry watchers say. The long-time consumer advocate helped craft net neutrality and broadband privacy rules. She is also widely viewed as a fierce anti-monopolist and opponent of the kind of unchecked media consolidation that has gutted local news, creating a vacuum quickly filled by political propagandists and assorted grifters.

If the Democrats fail to expand its Senate majority, they will continue to struggle to approve hundreds of backlogged Biden nominees. If the GOP takes full majority control of Congress, it’s expected that the nomination process will largely grind to a halt—especially for any nominees with a history of standing up to powerful entrenched corporations.

Even if the Republicans only take the House, and Democrats hold the Senate, any bills to reform big telecom stand no shot at passing. A recent effort by Sen. Ed Markey (D-Mass.) and Sen. Ron Wyden (D-Ore.) to reinstate net neutrality would be dead, two years of control of Congress and the White House up gone up in smoke.

Meanwhile, Comcast spent much of the year hiring former staffers and colleagues of Democrats facing difficult midterm battles in the hopes of swaying their votes on Sohn. Sohn could still see confirmation by those senators during the lame duck session, but given telecom’s influence, nothing is guaranteed. 

Should the GOP gain control of the Senate, there’s little reason to think that anything short of the most industry-friendly replacement candidates would survive the nomination process, assuming any Democrat-chosen candidates are confirmed at all. The end result would be the same neutered FCC Biden already has.

That means no net neutrality rules, no accountability for media and telecom giants, no meaningful expansion of programs designed to shore up broadband access and affordability, no constraints on the growth of massive media empires, and the continued domination of the broadband market by regional monopolies to the detriment of marginalized communities.

A recent report in the Markup highlighted how big ISPs routinely charge lower-income and minority Americans significantly more money for slower broadband service. Other consumer group studies have showcased how this practice, dubbed redlining, is pervasive across most of America.

While the Biden FCC has promised to take a closer look at the problem, it can’t take meaningful action without a clear voting majority. And it can’t obtain that voting majority if Senate Democrats aren’t able to expand their majority in the Senate.

“As long as we continue to have a split FCC, the administration’s priorities will continue to fall by the wayside,” Forester said. “Their commitments to racial justice will remain empty promises, and we’re going to end up with digital discrimination rules that will only punish telecoms if their CEOs are secretly recorded spouting specific racial slurs in reference to why they refuse to upgrade internet services in communities of color.” 

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