How The Election Could Reshape The Telecom Industry

(October 30, 2020, 6:27 PM EDT) -- Tuesday's election could reshape the communications industry in several key areas, including the distribution of 5G airwaves, the possibility of new regulations for social media companies and the composition of the FCC itself.

While none of the telecom policy leaders in Congress face serious election challenges, a change in partisan control of the Oval Office or a chamber of Congress could elevate members of the minority party to top legislative or FCC posts. Here's a look at how races for the White House and Congress could impact these and other telecom priorities.

Committee Leadership

The congressional committees that claim jurisdiction over the Federal Communications Commission and communications service providers are expected to remain relatively stable, regardless of the election's outcome. However, the way these committees tackle hot-button issues could change considerably.

Whether the Senate remains under Republican control or flips parties, as analysts predict is likely, telecom industry experts expect that current hot topics such as mapping U.S. broadband coverage, expanding internet infrastructure and securing broadband equipment will remain top of mind for the next Congress.

"I think that the telecom priorities of Congress will probably be the same regardless of who is in control of either house," said Christian Fjeld, a former staff member of the House and Senate Commerce committees who is now a vice president at Mintz Levin Cohn Ferris Glovsky and Popeo PC. "There could be different emphasis as to the direction the policy is going."

If Democrats gain control of the upper chamber, Sen. Roger Wicker, R-Miss., would cede leadership of the Senate Commerce Committee to ranking Democrat Maria Cantwell of Washington, who would likely be interested in reviving discussions about net neutrality legislation to put an end to partisan ping-ponging on the issue.

Fjeld said Cantwell would need to break through partisan divisions that have obstructed prior net neutrality deals, though.

"The question is, will the action be at the newly instituted FCC, or will it be in Congress? That bipartisan compromise has proven elusive in the past," Fjeld said.

Former Republican FCC Commissioner Robert McDowell agreed that the possibility of a Democratic Congress coining net neutrality rules — mandating that internet service providers can't interfere with web traffic they transmit — could go either way after the Republican FCC's 2017 repeal.

"It's an open question as to whether or not a Democratic Congress in both houses would step back and let the FCC do it. Or, would they want to solidify something in statute?" said McDowell, now a partner at Cooley LLP.

David Goodfriend, a policy strategist who was a White House official during the Clinton administration, noted that there's a chance Cantwell might decide to vie for another top committee slot — she currently belongs to the natural resources, finance, Indian affairs and small business committees as well — leaving other high-profile Senate Commerce members free to claim the mantle on communications issues.

"There has been some question as to whether or not other Democrats on the Senate Commerce Committee would want a turn as ranking member," Goodfriend said. "There's a huge amount of talent among Democrats on that committee — think about Amy Klobuchar, Richard Blumenthal, Ed Markey and others."

The House Energy and Commerce Committee is currently chaired by Rep. Frank Pallone, D-N.J., and based on Election Day projections, that composition is unlikely to be disturbed.

After the heads of Facebook, Twitter and Google testified in the Senate on Wednesday, Fjeld said it's clear lawmakers are interested in crafting more specific rules spelling out how the internet liability shield would be applied to content moderation. However, the direction it takes will vary by party.

Democrats want the social media companies to do more to curb misinformation, while Republicans — who have repeatedly asserted that social media platforms are prone to flagging conservative posts as misinformation — want platforms to be judicious in choosing which posts to modify.

If Republicans maintain their hold on the Senate and Wicker remains at the helm of the Commerce Committee, he will push his bill requiring websites to moderate user-posted content free from political bias if they wish to escape legal liability for lawsuits.

If Cantwell steps into Wicker's role and Sen. Brian Schatz, D-Hawaii, rises from ranking Democrat to chairman of the Senate Commerce telecom subcommittee, they'll likely push Schatz's rival bill, which focuses on more procedural fixes to the liability shield. Specifically, his bipartisan Pact Act asks platforms to clearly explain their content moderation practices to consumers and to set up a complaint system for when people think a moderation decision was unfair.

"There's an appetite to do some sort of reform on Section 230. I think that's going to be an issue they'll deal with regardless of who's in control," Fjeld said.

While telecom committee leadership will remain relatively stable, telecom attorneys told Law360 they're watching key races in states like Alabama, Arizona, Colorado, Iowa and Montana that will determine which party controls the Senate, where a change in party control is most likely.

White House Initiatives

President Donald Trump's White House has been unusually vocal about two issues that are top of mind for telecom practitioners: 5G spectrum allocation decisions and a potential role for the FCC in regulating social media moderation practices.

A Pentagon request for information is currently exploring how it could facilitate public-private spectrum sharing, potentially skirting the process through which the FCC coordinates government-overseen spectrum auctions and sharing arrangements with the private sector.

A Joe Biden administration would be expected to immediately shut down conversations about any such centralized 5G project, even as companies like Rivada Networks have appeared eager to bid on the venture.

"I certainly think that the Biden administration would be likely to put an end to any talk of the Department of Defense or any other government agency owning the network and leasing that capacity," Goodfriend said.

However, Gigi Sohn, a fellow at the Georgetown Law Institute for Technology Law and Policy and former Democratic FCC adviser, said the Trump administration would keep pushing the idea if the president wins a second term.

"This administration, if reelected, will continue to put pressure on the FCC illegally [when] an independent agency should decide for itself," she said. "In a Biden administration, this conversation goes away."

As for Section 230, both Trump and Biden have advocated for getting rid of the legal shield that lets websites escape lawsuits over user-posted content as long as they employ reasonable moderation policies.

Biden told The New York Times in January that the statute "immediately should be revoked," and he advocated for social media companies to shoulder the same responsibilities as newspaper publishers.

At the time, he criticized Facebook for "propagating falsehoods they know to be false" and for not doing enough to curb misinformation.

According to Goodfriend, Democrats would be more likely to focus on the antitrust aspects of social media companies and their unfettered ability to steer important national conversations, rather than cracking down on perceived political censorship.

"President Trump has turned Section 230 into a thinly veiled threat based on actions that he doesn't like from tech companies," Goodfriend said. "I think the Democrats are more likely to look at these Section 230 issues in the context of market concentration."

FCC Control

Whether or not 1600 Pennsylvania Ave. gets a new occupant, the composition of the five-member FCC is undoubtedly set to change.

If Biden is elected, current FCC Chairman Ajit Pai would be removed as agency head to make way for a Democratic successor. By seniority, Democratic Commissioner Jessica Rosenworcel is next in line to chair the agency, followed by fellow Democratic Commissioner Geoffrey Starks. A Biden administration would have at least one empty seat to fill with a new Democratic FCC nominee, thanks to the pending departure of Republican Michael O'Rielly. Biden could even tap a new member to be chairman.

Conceivably, Pai could still keep his seat as a commissioner until his term runs out in July 2021. However, FCC chiefs typically leave the commission altogether when there's a partisan change in administration, as Obama-era FCC Chairman Tom Wheeler did when Trump took office. Pai's likely exit means Biden would have two seats to fill, though one of the two new members would need to be a Republican.

Republican FCC Commissioner Brendan Carr appears secure in his seat regardless of the election outcome and ready to fight for big GOP priorities, including infrastructure deregulation and Section 230 reform. Carr is the only sitting commissioner who has said he agrees with Trump's and Pai's vision for bringing social media moderation under the FCC's purview.

Shortly after the Trump administration asked the FCC to craft rules interpreting when websites can take advantage of the Section 230 legal shield, O'Rielly spoke out against the proposal and Trump subsequently revoked his nomination to another term.

Trump instead nominated Commerce Department official Nathan Simington, who helped craft the administration's Section 230 petition to the FCC, to fill the Republican seat that O'Rielly will vacate before the end of this year.

Simington's confirmation isn't a sure thing. If Biden wins and Simington fails to secure Senate approval in the current session, his nomination could expire, freeing Biden to negotiate with Republicans and pick someone else to fill the second GOP seat.

However, given how focused the current Congress has been on pushing through nominations, Fjeld said it's not unreasonable to expect the Republican-led Senate to fast-track Simington's nomination before a Biden administration can take office. Simington is scheduled to testify before the Senate Commerce Committee on Nov. 10.

"I could see some kind of attempt in lame duck to pass that nomination knowing that a Biden administration will be coming in the next Congress," Fjeld said.

--Editing by Aaron Pelc.

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