2015 was the year the Federal Communications Commission grew a spine. And 2017 could be the year that spine gets ripped out.
Over the past two years, the FCC has passed new regulations to protect net neutrality by banning so-called "slow lanes" on the internet, created new rules to protect internet subscriber privacy, and levied record fines against companies like AT&T and Comcast. But this more aggressive FCC has never sat well with Republican lawmakers.
Soon, these lawmakers may not only repeal the FCC's recent decisions, but effectively neuter the agency as well. And even if the FCC does survive with its authority intact, experts warn, it could end up serving a darker purpose under President-elect Donald Trump.
Predicting exactly what sort of telecommunications policy the next administration will pursue is tricky. The main clues we have thus far are the writings of Trump's transition team. But transition teams don't actually make policy, so they're an imprecise indication of what will follow. "It’s amusing to watch all the misguided tea-leaf reading based on the transition team members," says Kevin Werbach, an associate professor at the Wharton School who was part of President Barack Obama's transition team. "It’s like when people speculated about Obama’s policy agenda based on attributes of my World of Warcraft character."
That said, Webach's writings were pretty consistent with Obama's campaign promises, as were those of his fellow transition team member Susan Crawford. All three supported net neutrality---the idea that all internet traffic should be treated equally---which became a central issue for the FCC under Obama.
Some have held out hope that Trump end up being more friendly to net neutrality once in office, despite a tweet in 2014 claiming that net neutrality would somehow be used to target conservative media (a claim that makes no sense), based largely on the Trump's opposition to the AT&T and Time-Warner merger during his campaign. But there's little reason to think net neutrality will survive under Trump. His transition team is just as united against net neutrality as their predecessors were for it. Congressional Republicans have been working to kill the FCC's net neutrality rules since before the FCC voted on them. The two Republican FCC commissioners have already vowed to overturn the FCC's current net neutrality rules and other regulations. So you don't need to read tea leaves to predict that the FCC's net neutrality rules are not long for this world.
The good news is that Comcast is required to honor net neutrality until 2018 under the terms of its merger with NBC Universal acquisition in 2011, and Charter is bound by a similar obligation until 2023 under the terms of its acquisition of Time-Warner Cable this year. It's also possible that some form of limited net neutrality protections could make it through congress, so long as the bill did away with the FCC's reclassification of internet providers as utility-style common carriers. "There is a recognition from the industry that we can't re-litigate every time there's a new administration," says Harold Feld of the digital rights advocacy group Public Knowledge.
But it's doubtful that such a bill would ban the biggest threat to net neutrality: charging customers for some data usage while exempting certain sites or apps, a practice known as "zero rating." Critics of zero rating argue that it amounts to a form of picking winners and losers on the internet, because services that don't count towards a customer's data cap will have a distinct advantage over those that do.
Most major internet providers, including AT&T, T-Mobile, and Verizon already some zero rated services, but the FCC has been slow to address the issue. The agency finally sent a letter to AT&T warning that its zero rated DirecTV Now video streaming service likely harmed competition. But Republican FCC commissioner Ajit Pai quickly followed up with a statement of his own, warning that any direction carried about by the FCC today "can quickly be undone by that same bureau" after Trump's inauguration.
Last October, one of Trump's FCC transition team members, former Sprint regulatory policy manager Mark Jamison, wrote an essay arguing that the FCC should be stripped of almost its authority other than managing radio spectrum licenses. "Most of the original motivations for having an FCC have gone away," Jamison wrote. "Telecommunications network providers and ISPs are rarely, if ever, monopolies. If there are instances where there are monopolies, it would seem overkill to have an entire federal agency dedicated to ex ante regulation of their services."
This certainly doesn't mean the Trump administration will actually end up dismantling the FCC. But coupled with the general anti-regulation mentality of the Republican Party---including its FCC commissioners---it does suggest a dramatically smaller role for the FCC in days to come. "The right has for a long time had an agenda that suggests that the role of the FCC should be significantly curtailed," says Werbach. "I think it's quite likely that will be the agenda of this new administration."
The catch is that Trump himself has been far less clear about what sorts of policies he might pursue as president. For example, Trump promised to block big media mergers during a speech in October. "As an example of the power structure I'm fighting, AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it's too much concentration of power in the hands of too few," the President-elect said at the time.
Many---including AT&T CEO Randall Stephenson---expect the Trump administration to approve the AT&T/Time-Warner merger despite his campaign promise. But Feld and Werbach point out that given Trump's bitter relationship with the media, he could use the FCC as a weapon against his perceived enemies in the media.
Feld suggests Trump could take an indirect route. For example, he could appoint commissioners who will keep the net neutrality rules on the books, but not enforce them. Then if MSNBC were to offend him he could launch an investigation into its parent company, Comcast, over net neutrality. If the administration approved the AT&T/Time-Warner deal, it would have a similar bludgeon to use against CNN. In other words, we could end up with perhaps the worst of both worlds: a highly consolidated media industry, coupled with a regulatory body that selectively enforces rules for political reasons.
It doesn't have to be that way. Feld points out that in 2003, the Republican-controlled FCC relaxed media ownership rules. But after widespread public outcry, Congress passed a resolution opposing the FCC's decision (the FCC's rules were eventually overturned by an appeals court in 2004, but new bill proposes changing the laws again).
Likewise, net neutrality seemed dead back in 2014 when the FCC, under chairman Tom Wheeler, a former cable lobbyist, introduced a proposal that could have allowed fast lanes. Once again, public outcry forced the FCC to consider another plan. Protecting net neutrality, internet privacy, and free speech will require similar push-back in the era of Donald Trump. So don't sit on your hands.
