Biden Executive Order Disrupts Hot DC Trend Of Pretending 'Big Telecom' Doesn't Exist
from the do-not-pass-go,-do-not-collect-$200 dept
We've been submerged in kind of a bizarre asymmetrical tech policy paradigm over the last few years, in which "big tech" is viewed as the absolute root of all evil requiring all manner of hand-wringing and antitrust/regulatory reform. At the same time, policy leaders have simply forgotten that heavily monopolized internet-adjacent sectors like "big telecom" even exist, giving them cover to gut regulatory oversight, consumer protections, and media consolidation rules. Telecom (AT&T) and media (Rupert Murdoch) giants have successfully exploited legitimate public anger at big tech to encourage this kind of lopsided policy thinking.
This week this policy myopia shifted back to baseline a bit with Biden's new executive order focused on shoring up competition issues. According to the EO fact sheet, the order pushes more than 72 different initiatives across a dozen federal agencies, including the FCC and telecom. Mike covered the not telco portions, which will be covered in this post. Most notable (for telecom, anyway) is that the order nudges the FCC to restore net neutrality rules:
We've noted more than a few times how the Trump/Pai net neutrality repeal didn't just kill "net neutrality rules." It gutted much of the FCC's consumer protection authority, limiting its ability to police fairly consistent telecom sector billing fraud and other bad behavior. It also attempted to ban states from filling that consumer protection void. It was effectively a giant wishlist cooked up by telecom monopolies like AT&T, based entirely on bullshit justifications, and propped up by fabricated public support. Despite this, the whole thing was dressed up as "serious policy" by press and policy wonks who should have known better.
In addition to the restoration of net neutrality, the Biden EO also takes several other steps to shore up telecom issues. Among them is urging the FCC to stop telecom giants from creating block-by-block broadband monopolies via exclusive landlord arrangements. The FCC passed rules prohibiting this back in 2007, but they're so filled with loopholes that telecom giants have been allowed to tap dance around them for years now (Susan Crawford wrote an essential primer on this problem for Wired a few years back).
A not insubstantial portion of the EO involves urging government agencies to simply do their jobs. Like the antitrust enforcers at the DOJ and FCC, who under both administrations are often little more than mindless rubber stamps for problematic job- and competition-eroding megadeals (see: the entirety of US telecom history since 1990). Simply leveraging more scrutiny to the often illusory benefits of endless megadeals would go a long way in shoring up both regulation and this whole "antitrust reform" so popular with the kids these days.
Other aspects of the EO related to telecom are more specific, like requiring that the FCC restore plans (also scuttled during the Ajit Pai era) requiring a sort of nutrition label for broadband, making ISPs disclose hidden fees, throttling, caps, or other restrictions on your broadband line (aka transparency). The order also urges the FCC to collect more data on broadband pricing, something it historically (at telecom lobbyist behest) hasn't been keen on doing for what should be obvious reasons.
Most of these proposals are common sense, while others restore a lot of the FCC consumer protection authority and policies telecom giants stripped away in a parade of fraud and dodgy bullshit during the Ajit Pai era. But many of them require a fully staffed FCC and permanent agency boss to actually implement, something the Biden administration has been in no rush to provide, much to the annoyance of consumer groups. There's a lot of ground to cover between what's in the executive order and actual implementation, and it's going to require an FCC with some real backbone to accomplish most of it.
Still, much to AT&T and Comcast's chagrin, the Biden EO makes it clear that the problems created by big telecom haven't been entirely forgotten, however much these regional monopolies would prefer policy conversations to remain myopically fixated on big tech and big tech alone.
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Filed Under: antitrust, broadband, competition, doj, executive order, fcc, joe biden, net neutrality, telco
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Staffing the FCC would be great, but on the other hand, Biden's staffing so far is a mostly unmitigated shitshow.
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"The Obama-Biden Administration's FCC adopted 'Net Neutrality' rules that required these companies to treat all internet services equally..."
Adopted in the last 15 min of the Obama presidency, so it had almost no time to become established.
End stage Obama was like the decades-absent dad suddenly wanting to parent in his adult kids' lives. We frankly needed candidate Obama to show up, about 7.5 years earlier than he did.
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Re:
...the reason they didn't pass net neutrality rules until 2014 is that that's when Verizon v FCC was decided, Noah.
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Executive Orders
A President legislating via direct Executive Orders to Federal Regulatory agencies is absolutely non-Constitutional.
These Regulatory agencies are supposed to be extensions of exclusive "Congressional" legislative authority from Artlcle I of the Constitution -- not tools of a President, who has zero Constutional authority to issue rules and commands to the American public and private economic sectors.
And these Regulatory agencies are supposed to be "independent", either completely or primarily.
These type Executive Orders are totally corrupt in legal process and specific substance.
Should we expect Presidents (and Congress and SCOTUS) to earnestly follow the Constitution and their solemn Oath of Office ?
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Re: Executive Orders
This isn't completely correct. The various agencies are considered part of the Executive branch, not the legislative. They were created by the Legislative branch to perform some of the duties of the Executive branch (executing the laws passed by Congress) which means that, while independent, they can be nudged by the will of the current President.
For example, this order only "encourages" the FCC to do things while it directly orders the Department of Health and Human Services to do other things. This is because the FCC is considered independent but the HHS isn't.
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Re: Executive Orders
Issuing directions to parts of the executive branch is exactly what executive orders are for. It's not legislation.
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Sounds good, but we'll have to see how it plays out in practice.
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"urge" = puffery, or worse
Ignoring the whole presidential power overreach problem, where presidents view themselves as authoritarian dictators who can "rule" as they please, in this article I saw one "requirement" (service details transparency), one "encourages,"and three "urging / urges."
Anything not required will be ignored, or worse, the lack of a requirement to fix a bad practice will be taken as tacit approval of that bad practice, and that practice will continue to flourish and grow.
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Re: "urge" = puffery, or worse
If Biden really wants to see Pai's FCC policies reversed, he might consider, you know, nominating someone to fill the seat that's been vacant for the last six months.
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Re: "urge" = puffery, or worse
The problem is that Biden doesn't see himself as a dictator over the Executive Branch. Wherever you see "encourages", "urging", or "urges" those are places where he can't legally order an agency to do something. Where you see "directs" or "requirement" those are places where he can (and has). Unless the Senate deadlock breaks, we're stuck with Executive Orders.
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Re: Re: "urge" = puffery, or worse
I...really don't consider that a problem per se.
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Point of view matters
If you view the purpose of the press and the policy wonks as providing generally neutral coverage and objective analysis, then yes, they should have known better.
If you view the purpose of the press and the policy wonks as propaganda tools which exist to give credence to whatever nonsense the government puts out, then they did their jobs admirably.
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The new staff Biden has placed does not inspire confidence that there will be pro consumer policy's put in place
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