CES 2024: FCC Commissioners Carr and Gomez Talk Tech, Spectrum, Cyber and Net Neutrality
The 2024 Consumer Electronics Show (CES) is in full swing, with technology enthusiasts, policymakers, entrepreneurs, and others gathering in Las Vegas to take in new technological innovations and engage in discussions about the issues, challenges, and opportunities facing the technology sector. The conference programming continues to include the “Conversations with a Commissioner” series, which this year featured fireside chats with FDA Commissioner Robert Califf, FTC Commissioner Rebecca Slaughter, and FCC Commissioners Brendan Carr and Anna Gomez.
The FCC Commissioners each engaged in a broad-ranging conversation about a wide variety of issues. These discussions addressed several themes that are quite prominent at this year’s conference, including artificial intelligence (AI), cybersecurity, and accessibility, as well as issues that are top of mind for the FCC such as spectrum and net neutrality. Overall, despite belonging to opposing political parties, the conversations demonstrated significant common ground, beyond the “bipartisan” walk of the floor that the Commissioners shared before offering remarks. This is perhaps unsurprising, given the number of bipartisan initiatives that FCC Chairwoman Rosenworcel was able to pursue before Commissioner Gomez joined the Commission in September 2023 to give the Chairwoman a 3-2 Democratic majority. At the same time, the discussions highlighted several areas where the two Commissioners have divergent views, particularly with respect to the Commission’s ongoing proceeding to reclassify broadband as a Title II common carriage service, which is likely to be a major issue at the FCC in the final year of the current Presidential Administration.
Bipartisan Agreement
The Commissioners shared similar views on a number of topics, including the potential of AI, the need for renewed FCC spectrum auction authority, the promise of the Commission’s cyber trust mark program, and the importance of accessibility for persons with disabilities.
The Potential of AI. With AI being a major focus at CES this year, both Commissioners weighed in on the promise of AI technologies. Commissioner Carr noted his excitement for solutions such as large language models (LLMs) and other AI-powered technologies that “will solve problems in people’s lives.” Commissioner Gomez discussed her hopefulness for the ability to use AI for spectrum management.
FCC Spectrum Auction Authority. Both Commissioners lamented that Congress has not renewed the Commission’s authority to conduct spectrum auctions. Commissioner Gomez explained that the absence of this quintessential FCC authority will “continue to put [the U.S.] behind,” particularly given that the FCC cannot conduct even preliminary activities related to spectrum auctions as long as the authority is lapsed. Commissioner Carr offered a similar sentiment, underscoring that “America’s leadership in wireless … is part and parcel of our geopolitical leadership.”
The Cyber Trust Mark Program. Both Commissioners expressed hopefulness that the Commission’s efforts to create a voluntary consumer labeling program for the cybersecurity of Internet of Things (IoT) devices would be fruitful. Both Commissioners expressed the view that if implemented correctly, this type of consumer label could be valuable for consumers making purchasing decisions. Commissioner Gomez also endorsed the public-private partnership model that the Commission’s Notice of Proposed Rulemaking envisions, noting that “public-private partnerships can be so effective at meeting the needs of consumers and industry.” Commissioner Carr offered a word of caution, warning against regulations that “go too far” or are too onerous, and emphasizing the importance of the Commission “proceed[ing] in a way that strikes the right balance.”
Accessibility. Both Commissioners touched on the importance of making technology, and communications products and services in particular, accessible to persons with disabilities – another dominant theme at this year’s conference. Commissioner Carr described the FCC’s obligation in this regard as both a moral and statutory one. Neither Commissioner discussed specific FCC initiatives in this regard, but the agency has been fairly active on accessibility in recent months, including its Order last year providing long-awaited clarification on the scope of video conferencing services covered by the Communications and Video Accessibility Act (CVAA). Both Commissioners also recently voted to adopt a Second Report and Order expanding audio description requirements under the CVAA and a Notice of Proposed Rulemaking on expanding hearing compatibility requirements for mobile handsets to cover 100% of wireless handset models.
Key Differences on Critical Priorities and Problems
While in agreement on a number of issues, the Commissioners also showed sharp contrast with respect to certain developments and proceedings that are likely to feature prominently at the Commission in the coming months, including the National Telecommunications and Information Administration’s (NTIA) newly released Spectrum Strategy and the Commission’s ongoing Title II net neutrality proceeding.
National Spectrum Strategy. As we have previously explained, NTIA recently released its long-awaited National Spectrum Strategy, which is intended to define priorities for spectrum policy under the Biden Administration. The Strategy identifies five spectrum bands for further study and potential repurposing and makes other recommendations related to spectrum management and efficiencies. Commissioner Carr sharply criticized the Strategy, arguing that “they didn’t have any spectrum in the National Spectrum strategy.” He contrasted the Strategy against the work of the prior Administration, which he described as “freeing up 6,000 megahertz [of spectrum] versus,” under the Strategy, “studying a fraction of that.” Consistent with his comments on the lapse of auction authority, he explained that the United States is “falling behind without a real plan to get spectrum out there.” Commissioner Gomez, meanwhile, praised the Strategy, calling it “great work” and “thoughtful,” and touted the importance of “continu[ing] to push forward on identifying spectrum for licensed and unlicensed uses.”
Net Neutrality. Unsurprisingly, the Commissioners have entirely different views on the Commission’s ongoing proceeding to reclassify broadband internet access service as a Title II telecommunications service, thereby subjecting it to additional regulations and oversight. Commissioner Carr noted that there are some principles that are “broadly agreed upon in DC,” including that “we as consumers should not see blocking, throttling, [or] anticompetitive discrimination” by internet service providers. “If people really wanted to solve net neutrality,” he claimed, “we could do it almost unanimously … in Congress.” But in Commissioner Carr’s view, Title II regulation by the FCC is the wrong approach to achieve those ends given the robust competition in the market for broadband services. He noted that consumers have numerous options and modalities to receive internet access, that prices are down as compared with utility-regulated services, and that predictions of Title II proponents that the Commission’s 2017 restoration of broadband as a Title I information service would be “the end of the internet as we know it” never came to bear. When asked whether robust broadband competition obviates the need for Title II treatment of broadband, Commissioner Gomez offered that, because “broadband connectivity is central to our lives,” it is critical to have “guardrails” to ensure that the market is competitive. She indicated the need for a “federal framework,” to provide those guardrails, as compared with the “patchwork of state laws” currently in place. While she noted that she “do[es] believe in the power of competition to be the regulator” – a statement Commissioner Carr almost certainly would agree with – she countered that “not everyone has access to competitive services.”
Commissioner Gomez’s Priorities
Commissioner Gomez also offered insight into her priorities as the FCC’s newest Commissioner during her fireside chat. Discussing her decision to provide statements on FCC items in both English and Spanish, she highlighted her interest in finding “opportunities to focus attention on the challenges that consumers from historically underrepresented communities face.” She expressed her desire for America’s consumers to be “empowered to take advantage of … the protections and programs that we have in place for their protection.” This priority was reflected in several of Commissioner Gomez’s early votes, including the Commission’s Report and Order adopted to implement a provision of the Infrastructure Investment and Jobs Act requiring that Commission to adopt “final rules to facilitate equal access to broadband internet access service … including … preventing digital discrimination of access based on income level, race, ethnicity, color religion, or national origin[.]” The resulting order creates a complaint framework to allow the Commission to investigate all manner of claims of digital discrimination by entities in the broadband ecosystem – including where broadband deployment decisions have resulted in a disparate impact rather than being the product of discriminatory intent. Commissioner Carr dissented from the order, asserting that while the FCC “could have adopted an order that lawfully and faithfully implemented Congress’s bipartisan decisions in the Infrastructure Act” by adopting rules that “ensur[e] that every American has a fair shot at affordable, next-generation connectivity,” the breadth of the order that the Commission adopted focuses too heavily on “increasing government control” over the internet, and in so doing “creat[es] multiple vectors of unnecessary litigation risk.” Other FCC actions that reflect Commissioner Gomez’s priorities have been less controversial, such as the Commission’s recent Report and Order adopting rules to facilitate the ability of domestic violence survivors to separate phone lines from their abusers pursuant to the Safe Connections Act of 2022.
