In the wake of a Donald Trump’s upset victory, telecom industry players are rubbing their hands in glee at the prospect of eviscerating Barack Obama’s fledgling net neutrality rules.
It was one of the crowning achievements of Obama’s administration when the FCC passed rules that barred broadband providers from selectively blocking or slowing web traffic, or providing paid “fast lanes” for select content. The rules enshrined the principal that all data traveling through ISPs’ pipes had to be treated equally.
To give the rules a solid legal foundation, the agency also voted to reclassify broadband as a utility under Title II of the Telecommunications Act.
Net neutrality enjoyed huge bipartisan support among consumers. But Republican lawmakers, who for the most part strongly opposed the rules, proceeded to put forward more than a dozen bills or amendments to weaken or kill the FCC’s new regulations. None succeeded. Then 11/9 happened.
Net neutrality, we hardly knew ye
Technology writer Larry Downes believes—to paraphrase Mark Twain—that reports of net neutrality’s impending death are greatly exaggerated, and “the core principles of enforceable net neutrality are in relatively little danger.”
He’s awfully lonesome in that rosy opinion.
Senator Ted Cruz labeled net neutrality “Obamacare for the internet.” And as with the president’s signature health care law, most industry observers expect net neutrality to be on the new administration’s chopping block.
“Net neutrality has a big target on its back,” Robert Kaminski, a telecom analyst at Capital Alpha Partners, told The Washington Post.
Reading the (bitter) tea leaves
Donald Trump has said little (that makes sense) on the matter. When net neutrality rules were proposed, he thundered—in a tweet, of course—that “Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target the conservative media.” (Fact check: The Fairness Doctrine—an FCC policy from the late ‘40s that said broadcasters must present issues in an honest, equitable, and balanced way—was eliminated in 1987; it has nothing to do with net neutrality.)
“How keeping the internet accessible to everyone is somehow a power grab, or how it will somehow oppress conservatives, is beyond us,” Wonkette opined at the time.
An examination of the people Trump has brought aboard his transition team to spearhead telecom issues does nothing to calm consumers’ fears: Senator Marsha Blackburn is a staunch AT&T ally, and Jeffrey Eisenach has been a harsh critic of both net neutrality and FCC Chairman Tom Wheeler.
While VP-elect Mike Pence made a big show this week of ridding the transition team of lobbyists, that was a cover story for purging everyone connected to Governor Chris Christie. Eisenach, who has worked for years on behalf of Verizon, remains ensconced.
Pick your poison
The overwhelming consensus is that the Open Internet’s days are numbered. “They could potentially blow everything up fairly quickly,” said an FCC official, who spoke to The Washington Post on condition of anonymity.
The question is: Will it be dismembered or suffocated?
The FCC is directed by five commissioners appointed to five-year terms by the president. The agency approved the current net neutrality rules along party lines, with a 3-2 vote. But in 2017, President Trump will appoint two new commissioners.
A Republican-majority FCC could vote to reclassify ISPs and remove Title II from broadband markets entirely, cutting off net neutrality at the knees. But that would be a slow and onerous process. “The agency would have to go through another rule-making process, which would involve months or years of public hearings and comment periods,” Bloomberg notes. Supporters of net neutrality would almost certainly challenge any changes in court. And a federal court decision that upheld the current regulations could further complicate the matter.
Alternatively, Ars Technica points out, the FCC could decide to forbear from the parts of Title II that were used to impose net neutrality rules, without actually reversing broadband’s classification as a utility.
Even if the rules remain in place, it could simply decline to enforce them--oblivion through neglect. The FCC, which investigates on a case-by-case basis, last week warned AT&T that its zero-rating plan may be violating net neutrality rules. But under a Republican-led FCC, AT&T would have little to worry about: In a paper last year, Eisenach defended zero rating, writing that “broad-based bans or restrictions on zero-rating plans are likely to be counterproductive and harm consumer welfare.”
“Where we head now isn’t clear, but I think it’s fairly apparent that all of the griping concerning usage caps and zero rating will likely seem downright quaint in around three to six months,” TechDirt writes.
Bypassing the FCC altogether, the Republican-controlled Congress could pass new federal laws. “Bills to [roll back net neutrality] have been floated in the last several years but were essentially symbolic during the Obama years,” Bloomberg notes.
One such bill proposed last year, called the Internet Freedom Act, would have wiped out net neutrality rules entirely. “With the risk of a [president’s] veto now gone, a legislative remedy now not only looks possible, but likely,” Craig Moffett of MoffetNathanson Research wrote this week.
Ain’t hindsight great
Senator John Thune drafted a net neutrality bill last year that would have prohibited blocking, throttling, and paid prioritization, but would also have prevented the FCC from using Title II to regulate broadband providers. Democrats should have taken that deal, said Berin Szoka, president and founder of advocacy group TechFreedom. “That was a colossal mistake on their part,” Szoka told Ars Technica.
One element that could yet save net neutrality from Congressional action is intraparty fratricide. “You have split factions among Republicans between hardliners who want to eliminate all regulation or even get rid of the FCC, and those who are not quite as psyched about that,” Harold Feld, senior vice president of advocacy group Public Knowledge, told Ars Technica. “It’s easy to go along with [a bill] when you’re not likely to get anything through, but when you’re in charge … you have to make some decisions.”
There are also some that cling to hope because Trump himself is unpredictable. While campaigning, he promised to block the merger of AT&T and Time Warner, saying that big media companies already had too much power.
Senator Elizabeth Warren warned Trump in a letter this week: “During your campaign for President of the United States, you railed against ‘powerful special interests’ that have ‘rigged our political and economic system for their exclusive benefit.’ … Now it is time to live up to those promises.”
Another long-shot possibility: Trump will appoint a wild-card commissioner to the FCC. When Obama appointed Wheeler, a former cable lobbyist, it was widely panned as a terrible choice. Net neutrality supporters can always hope for another miracle conversion.
Failing all that and net neutrality rules fall, Karl Volkman, CTO of SRV Network, says:
Large corporations will essentially dominate the internet, which means that users will completely be at the whim of these companies—companies which already have some of the lowest customer satisfaction ratings in the country. Not only will these companies dominate the industry, they will also dictate what you can access on the web. Large businesses will be able to pay cable providers top dollar in return for high download speeds, while small businesses will essentially be edged out. It is a lose-lose situation for everyone, except of course, the monopolizing companies who will get to dominate every piece of the pie.