The Biden Administration issued its 52nd Executive Order Friday aiming to build back competition for broadband internet services with a series of changes aimed at guiding the hand of multiple federal agencies and commissions.

But just how far the President is prepared to take these positions, including his call for the reinstatement of net neutrality, remains to be seen.

The order calls for increased regulation and accountability of major corporations to improve competition, and restore power to federal anti-trust oversight and enforcement, particularly where the monopolization of internet services is concerned.

Among the expansive orders covering multiple industries, the president called for a reinstatement of net neutrality regulations, a ban on early broadband termination fees and requiring ISPs to provide customers with full disclosure of fees and costs prior to signing up.

In the plan, Biden said he intends to “supercharge” antitrust enforcement efforts by charging more than a dozen agencies with solving “the most pressing competition problems.”

However, in the case of the FCC and the Federal Trade Commission the directives are little more than suggestions to the independent agencies.

The order “calls on” the Department of Justice and the FTC to vigorously enforce antitrust laws and even to challenge previously approved “bad mergers.”

The order aims to take on four main issues that limit competition, raise prices, and reduce choices for internet service, including:

  • High termination fees
  • Lack of competition among broadband providers
  • Lack of transparency in service fees and requirements
  • Throttling speeds or blocking access to select streaming services

In the order Biden said more than 200 million U.S. residents live in an area with only one or two reliable high-speed internet providers, which drives up prices as much as five times higher than in markets with more options.

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Similarly, he aims to end the practice of landlords and internet service providers entering into collusive exclusivity arrangements that leave tenants with only one broadband option. The practice tends to impact low-income and marginalized neighborhoods most often by blocking out broadband infrastructure expansion by new providers.

To address transparency, Biden’s order would revive the “Broadband Nutrition Label,” which was an effort initiated under the Obama administration requiring broadband providers to report their prices and subscription rates to the FCC along with speed and availability data. The information would enable the FCC to create simple labels offering basic information about internet services and fee requirements during promotional periods and after.

Broadband Nutrition Labeling was eliminated under the Trump Administration’s FCC and enabled practices where actual prices paid for broadband services today can be 40% higher than advertised.

Biden’s solution also would limit high termination fees that often prevent consumers from switching to better deals when they arise, the order states. Such fees on average can range up to $200.

In restoring net neutrality rules that were in place under the Obama-Biden Administration, broadband ISPs would be prevented from discriminatorily slowing down or blocking internet access to certain streaming services. Restoring the rules eliminated in 2017 would require ISPs to treat all internet services equally.

To get these measures approved, a third Democrat aligned with the positions of the President will need to be appointed to the FCC in order to break a likely 2-2 deadlock with the sitting Republican commissioners.

In other tech-related directives, the order calls for greater scrutiny of mergers involving dominant internet platforms, with special attention given to “the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by `free’ products, and the effect on user privacy.”

The President also wants new rules from the FTC on surveillance and the accumulation of data by technology companies, barring “unfair methods of competition on internet marketplaces.”

Commenting on the order, Gary Shapiro, president of the Consumer Technology Association, issued a statement Friday afternoon saying: “Elements of this executive order threaten our global leadership and hard-won success.”

“The most concerning aspect is increased scrutiny of business mergers – even those that were completed years ago, entirely within legal bounds,” Shapiro continued. “This strays well beyond legitimate government guardrails and threatens our ability to innovate. Countless startups launch with the goal of being acquired by a large company, a process that allows big ideas to become marketplace realities. Prohibiting these acquisitions will dry up venture capital, harm entrepreneurs and small businesses and make our economy less competitive.”

Shapiro applauded provisions in the order including: “Instructing the Food and Drug Administration to create rules allowing hearing devices to be sold over-the-counter that will put less expensive, cutting-edge technology into the hands of many more Americans who suffer hearing loss. Also, ordering the Federal Trade Commission and Department of Justice to challenge states’ overly broad job-licensing requirements can help out-of-state physicians and health care workers deliver better care and telehealth services to more patients.”

“A government effort presuming ‘big is bad’ or trying to pick marketplace winners and losers will reduce innovation, cost our nation countless jobs and upend the savings and retirement plans of millions of Americans. Not all challenges are solved with new rules – and streamlining or eliminating unnecessary rules can foster greater competition and economic growth. We will continue to work with the administration and Congress on ways to enable innovation and competition, rather than thoughtlessly stifle it at every turn.”

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By Greg Tarr

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