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The net neutrality rules implemented during Barack Obama’s presidency don’t seem likely to survive Donald Trump’s administration.
Federal Communications Commission Chairman Tom Wheeler crafted the rules to survive lawsuits filed by Internet service providers, and the strategy worked when a federal appeals court upheld the rules in June of this year. But that doesn’t mean a new presidential administration can’t overturn them.
The FCC rules say ISPs may not block or throttle lawful Internet traffic or speed up Web services in exchange for payments from online service providers. A similar set of net neutrality rules was previously struck down in court, leading to Wheeler’s decision to reclassify broadband providers as common carriers under Title II of the Communications Act. The commission’s Title II authority was enough to put the rules on solid legal ground.
But once the FCC is in Republican hands, the agency will have multiple options for taking the rules off the books. One is “forbearance.” Wheeler used the legal tool of forbearance to avoid applying the strictest types of Title II regulation (such as rate regulation and tariff requirements) to consumer Internet service providers.
Basically, forbearance is a way for the FCC to enforce some parts of a statute but not others. Republicans could decide to forbear from the parts of Title II that were used to impose net neutrality rules, eliminating them without reversing the Title II reclassification. A Republican-led FCC could also reclassify ISPs again, removing Title II from the residential and mobile broadband markets entirely.
FCC actions require public notice and comment periods, so the process would take a few months, and net neutrality proponents would rally huge support for maintaining the rules. But ultimately, the decision comes down to the commissioners, and Republicans will have a 3-2 majority. Net neutrality advocates could sue the commission, but the court ruling that preserved Wheeler’s net neutrality rules demonstrated that the FCC has discretion over what entities are treated as common carriers.
Even if the existing rules remain in place, a Republican-led FCC might just decline to enforce them vigorously. This week, the FCC told AT&T that it may be violating net neutrality rules by exempting its own DirecTV video from mobile data caps while charging other companies for data cap exemptions.
The net neutrality rules don’t ban these data cap exemptions, but the FCC has the ability to review them on a case-by-case basis to determine whether they harm competitors or consumers. Once the FCC is led by Republicans, AT&T may have nothing to worry about because the new leadership could decide to do nothing about these edge cases.
GOP’s version of “Internet freedom”
The FCC isn’t the only venue in which Republicans can attack net neutrality rules. Under Trump, the Republican-controlled Congress would likely be able to wipe out net neutrality rules without fearing a veto. Trump hasn’t spoken often about net neutrality, but in 2014 he called it “Obama’s attack on the Internet” and a “top down power grab… [that] will target conservative media.”
Republicans in Congress have already proposed a variety of bills that limit the FCC’s regulatory authority, eliminate net neutrality rules, or replace the existing ones with rules that are less strict. One bill, called the “Internet Freedom Act,” would have wiped out net neutrality rules entirely. One bill passed by the House of Representatives banned “rate regulation” of broadband, but defined rate regulation so broadly that Wheeler said it would hamstring the FCC in net neutrality and other areas, such as in merger reviews. Congressional action could also have limited the FCC’s ability to oversee interconnection billing disputes that reduce Internet quality for customers.
Sen. John Thune (R-SD) and Rep. Fred Upton (R-Mich.) offered a net neutrality draft plan last year that would prohibit blocking, throttling, and paid prioritization, just as Wheeler’s rules did. But the Thune/Upton proposal also would have prevented the FCC from using either Title II or the weaker Section 706 of the Telecommunications Act to regulate broadband.
Democrats should have taken the Thune/Upton deal instead of reclassifying ISPs under Title II, said Berin Szoka, president and founder of advocacy group TechFreedom, which opposed the Title II net neutrality plan.
“That was a colossal mistake on their part,” Szoka told Ars this week. Instead of strict bans on blocking, throttling, and paid prioritization, the government under Trump could decide to regulate all net neutrality matters on a case-by-case basis, he said.
It isn’t a given that Congress will pass anything on net neutrality, said Harold Feld, senior VP of pro-net neutrality advocacy group Public Knowledge. Because Republican proposals on net neutrality ranged from wiping it out entirely to more measured responses, they won’t necessarily agree on a final approach.
“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,” Feld told Ars. “It’s easy to go along with it when you’re not likely to get anything through, but when you’re in charge… you have to make some decisions.”
It’s impossible to predict exactly what will happen, but Feld said there will be “a lot of attempts to try to roll things back.”
EnlargeGetty Images | Kheng ho Toh