The 2020 elections were historic in a number of ways, including drawing in the highest proportion of voting-eligible Americans (65 percent!) to participate in the last 100 years. With the Biden-Harris ticket apparently winning the presidency, the rest of the election was mixed for Democrats and Republicans. In the Senate, with only 12 Democratic seats up for reelection and 23 Republican, the GOP stood to lose the most this year, including their narrow three-seat majority. With the results thus far, Republicans hold on to at least 50 seats with two more Senate seats in Georgia facing runoff elections in January. Meanwhile, Democrats maintained a majority in the House, albeit a smaller one, with a handful of races yet to be decided. What does all of this mean for issues important to tech-driven companies and industries in Congress? Here’s a quick breakdown.

The Old:

For the past 20 years—until March 2020—small amendments to the statute that authorizes Medicare coverage of telehealth services were considered major accomplishments. A steady stream of them have been enacted over the past decade or so, providing limited carve-outs from general prohibitions on coverage for certain use cases and provider types. The general restrictions on that coverage limit the Centers for Medicare & Medicaid Services (CMS) from covering live audio and video visits with a doctor unless a patient is at a qualified “originating site” (generally, the patient has to be at another doctor’s office that’s on the list, and can’t be at home or anywhere else) and in a rural, designated health professional shortage area. The pandemic forced Congress to provide a waiver from these restrictions for CMS, but the waiver only lasts until the end of the public health emergency, which expires in the next two months unless there is an extension.

Now, bills that would totally and permanently reverse these Medicare telehealth coverage restrictions have gained unprecedented support. This bipartisan alignment on wholesale changes is a new approach to an old policy priority and very welcome for patients, providers, academics, and experts—not to mention the App Association and its Connected Health Initiative. Concerns about the cost of these measures persist, but a growing number of policymakers are viewing the short-term costs as more than worth the investment and in any case likely to lead to cost savings from better access to preventive care. With shifting winds and a complicated path for substantive policy ideas during the lame duck session (now until January), it is possible, but unlikely, for permanent telehealth reform to be enacted in the twilight of 2020. More likely, the boldest of proposals—allowing CMS to cover telehealth services regardless of where a patient is located—will be reintroduced in 2021 and with any luck, could move through both chambers and to the President’s desk. That will be critical to ensure that the old statute is  reversed permanently, rather than a temporary fix that leaves providers and patients wondering when it will be snatched away.

The New:

The 116th Congress saw both Republicans and Democrats coming together over a shared purpose: going after big tech companies. This broke a longish stretch of Democrats seeking a more regulatory approach to address privacy issues and related negative externalities, while Republicans fought to prevent government overreach from harming job creation and growth in those maturing sectors. By 2019 and 2020, however, Republicans have mainly joined calls for government intervention to remedy perceived Silicon Valley malfeasance, albeit for different reasons and with different goals than Democrats. Specifically, Republicans decry social media moderating practices they say tend to suppress conservative views while letting similar commentary from the other side slide. Those views are best summarized in a heavily cited report by House Judiciary Ranking Member Jim Jordan, and generally they seek to diminish or eliminate Section 230 of the Communications Decency Act, which shields online platforms from liability for the content others publish on their forums.

Meanwhile, Democrats have intensified and doubled down on calls to regulate larger tech firms, introducing privacy bills with increasing breadth and complexity. However, Democrats have also moved more boldly into the Section 230 debate and are outlining more ambitious antitrust frameworks than we have seen in recent memory. The 230 proposals are not unlike Republican measures (and many are bipartisan), but Democrats seek the opposite: more moderation by social media platforms rather than less. The antitrust proposals range from breaking up tech-driven platform companies of all stripes (for example, retail platforms like Amazon, social media platforms like Facebook, and software platforms like Google Play / Android) to establishing a new federal “tech” regulator. A good reference for these proposals is found in this even more heavily cited report by the House Judiciary Antitrust Subcommittee majority. Notably, some Republicans on the Subcommittee have shown an interest in these ideas and stipulated to a number of the Democrats’ findings throughout the seven-hearing process of developing that report, but thus far haven’t agreed to any specific legislative proposals.

Headed into 2021, we don’t see any reason that this dynamic will fundamentally change or for the “techlash” animating these policy efforts to abate significantly. Constituents appear to be rewarding elected officials when they are seen taking the big tech CEOs to task. We fully expect there to be additional hearings featuring those CEOs and likely some bipartisan reform. It’s too early to tell if the major antitrust proposals will see significant bipartisan buy-in, but it does seem likely that members will come together on some sort of amendment to the Section 230 liability shield, as narrow as that might ultimately be. Where you can expect the App Association to focus most of our efforts is on undoing the damage done over the past few years on the role of antitrust law in curbing standard-essential patent (SEP) abuse. That debate is flying further under the radar than it should because it is not easily summarized in a headline or tweet—and yet a course correction could save consumers billions in price gouging and competition killing from SEP abusers.

The Borrowed:

Accelerated by the pandemic, an increased reliance on the ability to access work, education, and healthcare from home has intensified federal scrutiny on both privacy and broadband availability. On privacy, Congress may borrow the momentum we’ve seen in the states as measures like the California Privacy Rights Act (CPRA) are enacted. However, while that increased pressure to compromise may be on loan to the Beltway, it may be handed right back as negotiations fail to advance past the usual impasses of whether a federal bill should preempt states and whether it should include a private right of action for trial attorneys to sue on behalf of consumers. And as increased internet traffic demands strained existing network deployments, internet service held up remarkably well in areas that have access to broadband. The congressional committees of jurisdiction are borrowing ideas from previous Congresses to accelerate or enhance federal support for deployment. And while there are partisan disagreements on the details, it seems likely that a compromise is possible on some kind of significant increase in federal support for broadband, including improving the maps showing where broadband is available. Congressional efforts in 2021 will complement recent activity at the Federal Communications Commission (FCC), including an October vote to approve much more substantial, nationwide use of the television “white spaces” between licensed channels and its decision to allow non-geostationary satellite systems to move forward with broadband service. These are positive gains for those of us pushing for an “all of the above” broadband strategy, and we could certainly see even a divided Congress building on those achievements.

The Blue:

Although Democrats may have fallen short of the gains they had hoped for in the House and Senate, the presidency going blue and at least the House being led by Democrats provides at least some opportunities to set the agenda. If the Senate remains in Republican hands, a Biden Administration may be more cautious with nominees requiring Senate approval, but with a slim margin, the filibuster will temper the overtly partisan strategies regardless of which party controls. The twin federal tech agencies, the Federal Trade Commission (FTC) and the FCC, are likely to change stripes a bit too. Look for the FTC’s case against Facebook to take a more aggressive approach, if it’s not filed by the Republican FTC before the end of the year. And last but not least, it seems likely a Biden FCC will begin work on net neutrality rules, reclassifying internet services under Title II. This would be a re-re-reclassification of the internet under the Communications Act that, whether you want Title II or not, is an unhelpful shifting of internet regulation that changes with Administrations and shouldn’t. The chances are perhaps slim with a divided or Congress with a narrow Senate majority, but the App Association will continue in 2021 to advocate for Congress to establish net neutrality principles in statute.