The White House might be running out of time to bring back net neutrality

Shortly after coming into office, President Joe Biden moved to restore net neutrality. He signed a sweeping executive order to promote competition, calling on the Federal Communications Commission (FCC) to bring back the Obama-era internet rules rolled back by the Trump administration.

But close to two years later, the FCC remains deadlocked with only four of its five commissioner slots filled — and Biden may be running out of time.

Biden’s pick for a new FCC commissioner was Gigi Sohn, a former FCC official and public interest advocate. Sohn would have secured a long-awaited Democratic majority at the agency. After she was nominated in October 2021, however, a well-funded opposition organized a brutal opposition campaign against her. The culture-war campaign called Sohn an “extremist” and a “censor” because of past tweets criticizing Fox News and former President Donald Trump, largely ignoring her decades-long professional record. After more than 16 months and three separate confirmation hearings, Sohn withdrew her nomination earlier this month, citing the “unrelenting, dishonest and cruel attacks” by broadband and cable lobbyists and their friends.

Now, the White House has been forced to start over, prolonging a vacancy that continues to obstruct the administration’s broadband agenda. The White House hasn’t announced a new nominee or when they’re hoping to confirm someone, but it’s unlikely that Biden would pick someone as critical of cable companies as Sohn. Republicans and “dark money” groups have already proved that they’re willing to spend millions to block progressive nominees. With so little time left in Biden’s first term, stakeholders may even try to thwart a more moderate nominee, especially if there’s an opportunity to continue the stalemate past the 2024 election.

Even if the White House selects a new nominee in the next few weeks, it could take months for them to be vetted and confirmed by the Senate. If the White House drags its feet in finding a replacement, Biden could be without a fifth commissioner when the 2024 election season begins. “The FCC deadlock, now over two years long, will remain so for a long time,” Sohn said in a statement announcing her withdrawal last week. “It is a sad day for our country and our democracy when dominant industries, with assistance from unlimited dark money, get to choose their regulators.”

Net neutrality, which bans internet service providers from favoring or degrading the quality of specific services, was one of Biden’s big-ticket promises. But as it’s an issue that mostly splits down party lines, the FCC’s stalemate has left his hands tied — putting states in charge of issuing their own patchwork rules.

Other parts of Biden’s agenda have suffered the same problem, including ones that are facing looming deadlines.

His 2021 infrastructure package required the agency to craft rules that would ensure all Americans, despite income status, have equal access to the internet. The agency has until November to draft these new digital discrimination rules, but civil rights groups fear it may be impossible to roll out meaningful protections without a third commissioner. 

“If advanced, the rule could hold broadband providers liable if their practices result in less internet access for people of color and low income communities, even if companies don’t intentionally discriminate,” the Leadership Conference on Civil and Human Rights said in a February statement on the rulemaking. “Without a fully functioning FCC, that rule is likely to be much weaker.”

Speaking with The Verge on Tuesday, Ernesto Falcon, senior legislative counsel at the Electronic Frontier Foundation said that antidiscrimination rules could come at a hefty cost to ISPs, requiring them to build out connections in places they otherwise would have ignored. “If you carry out the will of Congress on requiring everyone to have equal access to the internet without discrimination based on income status, we’re talking about a multibillion dollar regulation,” Falcon said. It’s the kind of reform that companies likely won’t undertake on their own and the FCC isn’t in a position to push through.

Other groups raised alarms over the FCC’s lack of authority to oversee how ISPs collect and sell sensitive user data like precise geolocation information, especially after the Supreme Court’s 2022 reversal of Roe v. Wade created a wave of new privacy and censorship fears.

“ISPs are under immense pressure to censor legitimate content, including websites with accurate information about abortion care and LGBTQ issues, with state legislatures passing bills demanding ISPs block entire websites,” Evan Greer, Fight for the Future director, said in a statement responding to Sohn’s withdrawal last week. “Meanwhile, lack of FCC oversight has enabled collection and sale of cell phone location data that puts vulnerable communities at risk of stalking, harassment, and surveillance. A fully staffed FCC could address these issues.”

Lacking a majority, Biden’s split FCC has instead focused on issues that receive Republican support. Last winter, the agency adopted new rules to give people living in apartments and other multi-tenant buildings more choice in their broadband provider, a major accomplishment that was approved 4–0. Commissioners also approved new rules requiring broadband providers to offer new nutrition-like labels disclosing a plan’s pricing, speed, and other network management practices to consumers before they subscribe. 

“This work has been navigated around effectively, but those things need to be addressed and this delays the opportunity for the FCC to manage them,” Greg Guice, government affairs director at Public Knowledge, told The Verge on Monday. “But, a lot of us in the public interest were hoping the Biden administration wouldn’t become an extension of the status quo.”