Brendan Carr wants to preserve data caps, punish NBC, and give money to SpaceX.
FCC Commissioner Brendan Carr speaks during the Conservative Political Action Conference (CPAC) in Maryland on Saturday, Feb. 29, 2020.
Credit:
Getty Images | Bloomberg
FCC Commissioner Brendan Carr speaks during the Conservative Political Action Conference (CPAC) in Maryland on Saturday, Feb. 29, 2020.
Credit:
Getty Images | Bloomberg
The Republican who is likely to lead the Federal Communications Commission under President-elect Donald Trump detailed how he would run the agency when he wrote a chapter for the conservative Heritage Foundation’s Project 2025. Carr, a longtime opponent of net neutrality rules and other broadband regulations, has also made his views clear numerous times when opposing rulemakings initiated by the current Democratic majority.
If Trump makes Carr the next FCC chairman after his inauguration, the FCC is likely to ditch consumer protection initiatives, like a recently announced inquiry into data caps, and attempt to regulate Big Tech companies while reducing regulation of Internet service providers. That could include forcing Big Tech companies to pay into a fund that subsidizes ISPs’ broadband network construction.
A Carr-led FCC could also try to punish news organizations that are perceived to be anti-Trump. Just before the election, Carr alleged that NBC putting Kamala Harris on Saturday Night Live was “a clear and blatant effort to evade the FCC’s Equal Time rule,” and that the FCC should consider issuing penalties. Despite Carr’s claim, NBC did provide equal time to the Trump campaign.
Carr might also try to steer money to Elon Musk’s Starlink system. Carr was a vocal opponent of the FCC decision to deny SpaceX’s application for $886 million in government funding and claimed that “President Biden gave federal agencies a greenlight” to punish Musk after he bought Twitter.
FCC chair’s power
Carr became an FCC commissioner in August 2017 after being nominated by then-President Trump. Carr was previously a legal adviser to Commissioner Ajit Pai and was briefly the FCC’s general counsel during Pai’s first year as chair in 2017.
Carr’s Project 2025 chapter, published in 2023, said “the FCC’s Chairperson serves as the agency’s CEO and is empowered with significant authority that is not shared with other Commissioners.” The chair “sets the FCC’s agenda, decides what matters the agency will vote on and when, and has authority to organize and coordinate the FCC’s work,” Carr wrote. Although the president’s nominations for each commissioner require Senate approval, the president can appoint any sitting commissioner to the chair spot without a Senate vote.
The chair does not have unlimited power, of course. Congress can expand or reduce the FCC’s authority by passing new laws or eliminating existing ones. FCC decisions are routinely challenged in court, and a recent Supreme Court ruling limited the regulatory authority of federal agencies.
Carr wants the FCC to regulate less, at least when it comes to Internet service providers. “The FCC is a New Deal–era agency. Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes,” he wrote.
The FCC, he said, “should engage in a serious top-to-bottom review of its regulations and take steps to rescind any that are overly cumbersome or outdated,” and “focus its efforts on creating a market-friendly regulatory environment that fosters innovation and competition from a wide range of actors, including cable-based, broadband-based, and satellite-based Internet providers.”
Chris Lewis, president and CEO of consumer advocacy group Public Knowledge, told Ars that Carr appears to be a leading candidate for the chairmanship “because of his experience and active presence in trying to chart a course for Republicans on telecom policy,” with the Project 2025 chapter being a prime example.
Public Knowledge generally argues that the FCC should take a bigger role in regulating Internet providers. “The public expects that there is an agency protecting consumers over communications networks and I think it would be wise for the new majorities and new administration to be clearheaded about that,” Lewis said.
Carr targets Big Tech and online speech
The FCC should have four primary goals, Carr wrote. Those goals are “reining in Big Tech, promoting national security, unleashing economic prosperity, and ensuring FCC accountability and good governance.”
On Big Tech, Carr wants to implement Trump’s 2020 plan to crack down on social media websites for alleged anti-conservative bias. At the time, Trump formally petitioned the FCC to reinterpret Section 230 of the Communications Decency Act in a way that would limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable.
Trump was so keen on getting this done in 2020 that he withdrew his re-nomination of then-Commissioner Michael O’Rielly, a Republican who took the party line on most issues but did not support Trump’s attempt to punish social networks. Trump and the Senate replaced O’Rielly with Nathan Simington, who was a member of the Trump administration before becoming an FCC commissioner just before Trump’s first term ended. Simington is another possible chairman and has similar views as Carr, but Carr has a longer tenure on the FCC and has sought the media spotlight more than Simington.
In the Project 2025 publication, Carr’s “reining in Big Tech” section said the FCC “should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.”
“The FCC has an important role to play in addressing the threats to individual liberty posed by corporations that are abusing dominant positions in the market. Nowhere is that clearer than when it comes to Big Tech and its attempts to drive diverse political viewpoints from the digital town square,” Carr wrote.
First Amendment
Lewis said Public Knowledge is worried that changes to Section 230 would harm the ability of online platforms to moderate content or choose not to moderate content, because companies could face great legal liability for those choices if 230 is weakened or scrapped.
O’Rielly argued in a July 2020 speech that apparently angered Trump that the FCC shouldn’t regulate in this area. “The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” O’Rielly said at the time. “Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making.”
Carr claimed in his Project 2025 chapter that “the FCC has authority to take this action because Section 230 is codified in the Communications Act,” and he pointed to Supreme Court Justice Clarence Thomas’ views on the law as evidence that the FCC can act.
Carr’s chapter also said the FCC should “address TikTok’s threat to US national security,” saying the Chinese-owned social network “provides Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.”
Carr’s Kamala Harris complaint
On November 2, Carr claimed that NBC was trying to evade the Equal Time rule by putting Democratic nominee Kamala Harris on Saturday Night Live. “The purpose of the rule is to avoid exactly this type of biased and partisan conduct—a licensed broadcaster using the public airwaves to exert its influence for one candidate on the eve of an election. Unless the broadcaster offered Equal Time to other qualifying campaigns,” Carr wrote.
Carr later told Fox News that “all remedies should be on the table,” including “license revocations.”
“One commissioner standing alone, there’s no real consequence that I can impose at this point,” he said. “You need the FCC chairperson or at least three commissioners on the FCC to agree to take action. We’ll see if we end up there with this commission or otherwise.”
Carr was wrong about the Equal Time rule, media advocacy group Free Press said on November 3. The group pointed to an FCC fact sheet that says the rule “does not require a station to provide opposing candidates with programs identical to the initiating candidate.”
“Despite Carr’s claim, there is no evidence that the network was trying to avoid the rules,” Free Press said. “Broadcasters have no legal obligation to set aside broadcast time for opposing candidates, unless the candidates request it. Equal-opportunity requests are commonplace in the final days of a national election, and broadcasters typically honor them.”
NBC did honor a request for equal time from the Trump campaign, giving him two free 60-second messages during NASCAR and NFL coverage.
“Carr is desperate to become the FCC chair”
Free Press co-CEO Jessica González said, “It’s bizarre that a sitting FCC commissioner would engage in such a blatant and wrongheaded attempt to curry favor with a presidential candidate. But this is just the sort of reckless behavior we’ve come to expect from Brendan Carr. You’d expect an FCC commissioner to be familiar with his own agency’s regulations. Instead Carr seems willing to concoct falsehoods if it means he’ll get noticed by the former president.”
González added, “It’s no secret around Washington that Carr is desperate to become the FCC chair should Trump be elected president. First Carr wrote a chapter in the widely discredited policy platform for Project 2025, a far-right master plan to disassemble US democracy. Now he’s making grossly inaccurate claims about communications law to win points with the former president.”
Carr continued claiming that NBC violated the rule even after Trump was given free TV time. “NBC and SNL decided to bring just one candidate on less than 50 hours before Election Day,” he wrote on November 6. “The FCC has previously addressed these types of ‘last minute’ situations. I encourage any candidate that does not believe that their Equal Time rights were honored to bring the issue forward to the FCC for our adjudication.”
Making Big Tech pay
Carr wants to help Internet service providers achieve a long-held dream of making tech companies pay for broadband network upgrades. Carr’s Project 2025 chapter said the FCC should “require that Big Tech begin to contribute a fair share” into “the FCC’s roughly $9 billion Universal Service Fund.”
The fund has long been paid for by telecom companies, which generally pass the cost on to consumers on their telephone bills. “While Big Tech derives tremendous value from the federal government’s universal service investments—using those federally supported networks to deliver their products and realize significant profits—these large corporations have avoided paying a fair share into the program,” Carr wrote.
The Biden administration urged Europe to reject a similar idea last year, saying that payments from online platforms to ISPs would “distort competition” and undermine net neutrality. The European plan was also criticized by Meta, Google, Netflix, and the Body of European Regulators for Electronic Communications (BEREC). The group of regulators from European countries said it found no evidence of “free-riding” by tech companies or evidence that ISPs’ costs weren’t fully covered.
If he becomes chair, Carr would have significant influence over which companies get money from the Universal Service Fund. Carr was angry about the FCC decision to reject Starlink’s application to receive $885.51 million in broadband funding.
The grant was tentatively awarded during Pai’s tenure but canceled in a 2022 ruling that called Starlink a “nascent LEO [low Earth orbit] satellite technology” with “recognized capacity constraints.” The Biden-era FCC had earlier pointed out that Pai’s system for choosing grant winners led to “complaints that the program was poised to fund broadband to parking lots and well-served urban areas.”
When the FCC rejected Starlink’s appeal in 2023, Carr said the FCC decision “certainly fits the Biden Administration’s pattern of regulatory harassment.” The FCC, Carr said, is one of a “growing list of administrative agencies that are taking action against Elon Musk’s businesses.” He alleged that “the Biden Administration is choosing to prioritize its political and ideological goals at the expense of connecting Americans.”
Killing broadband regulation
Carr also wants to help ISPs avoid regulation. A Carr-led FCC would likely drop the agency’s legal defense of its net neutrality rules, and that defense is off to a rocky start in court already.
California and other states have been regulating net neutrality themselves since the Pai FCC eliminated Obama-Era rules that prohibited paid prioritization and blocking or throttling of lawful traffic. The next FCC chair could try to revive Pai’s attempt to preempt state laws, which was rejected in court in 2019.
Carr would likely try to halt or unwind other initiatives that Democratic Chairwoman Jessica Rosenworcel has undertaken to help broadband consumers. Carr dissented last year in the FCC’s 3-2 decision to impose rules that prohibit discrimination in access to broadband services. Carr described Rosenworcel’s discrimination proposal as “President Biden’s plan to give the administrative state effective control of all Internet services and infrastructure in the US,” claiming it was “motivated by an ideology of government control that is not compatible with the fundamental precepts of free market capitalism.”
Rosenworcel last month announced a formal inquiry into data caps to consider their effect on consumers and whether the FCC has authority to regulate them. In dissent, Carr said, “I cannot support the Biden-Harris Administration’s inexorable march towards rate regulation,” and that “the FCC plainly does not have the legal authority” to regulate data caps.
He also said that data caps can be good for Internet users. “Prohibiting customers from choosing to purchase plans with data caps—which are more affordable than unlimited ones—necessarily regulates the service rates they are paying for,” Carr said.
Lewis told Ars that ditching the data cap inquiry means that “we will miss out on opportunities to look at when a broadband provider preferences its own streaming service or other service over a competitor’s. Ending the data caps probe will mean we will not be able to look at those sorts of specific cases and see if there is an anticompetitive practice.”
Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.
