When FCC chairman Tom Wheeler passed the Open Internet Order in February of 2015, it was the culmination of decades of work. After countless advocacy campaigns and legal fights, the order classified internet providers as common carriers — falling under Title II of the Communications Act — which prohibits the companies from blocking or discriminating against traffic as it moves over their network. The move was met with cheers from net neutrality advocates and internet companies like Netflix and Twitter, who saw it as a crucial step toward keeping the playing field level for anyone trying to build things on the internet.
Now, Donald Trump may be poised to undo it.
In the coming weeks, Trump will name his pick for chairman of the FCC, giving him power to set policy and reverse any orders made by previous commissioners. With Republicans in control of both houses of Congress, the incoming president could potentially go even further, passing laws to close off the possibility of similar orders once he’s out of office.
There’s nothing to stop Trump’s FCC from reversing Wheeler’s net neutrality order
It’s still hard to say how Trump himself feels about net neutrality: the only indications are a muddled two-year-old tweet. Still, a number of officials on Trump’s FCC transition team have vocally criticized net neutrality, and many in Washington already see the incoming commission as a chance to hand control of the internet back to service providers like Comcast and Verizon.
Legally, there’s nothing to stop Trump’s FCC from undoing any order made by the previous commission, including Wheeler’s Title II reclassification. The same powers that let Wheeler’s commission grant the open internet order can be used to undo it, and there’s no law holding it in place. The courts have ruled that the order is legal, but that only means the FCC can classify the internet as a communication service, not that it must.
“It’s like Obamacare. You want to repeal and replace it, but with what?”
But while repealing Wheeler’s order would be legal, it would also be difficult to replace. The core of Wheeler’s net neutrality order was forcing internet service providers to abide by existing rules for common carriers, just like phone networks and other Title II companies. The next FCC can reverse the order, but there will be significant political pressure to impose some kind of regulation in its place, and the legal precedent leaves few alternatives. Wheeler’s Open Internet Order only came to a vote after years of public debates and roundtables on the topic. The decision to treat ISPs as common carriers came only after a federal appeals court ruled that Title I regulation was insufficient and general principles from Congress weren’t a strong enough basis for enforcement, rulings that would cause serious problems for anyone trying craft a replacement for Wheeler’s policies.
“There’s a lot to work through about how consumers will be protected if they eliminate these rules,” says Chris Lewis of Public Knowledge. “It’s like Obamacare. You want to repeal and replace it, but with what?”
Legally the simplest approach would be to not regulate at all, simply vacating the Open Internet Order without replacing it. But such a move would have to withstand scrutiny from the House and Senate Commerce Committees, just as Wheeler’s initial proposal for Title II classification did. Not everyone on the committees is a fan of Title II classification, but throughout the fight, there’s been a broad agreement that the FCC should have some authority to protect an open internet. If the FCC suddenly backed away from that mandate, it would face lawsuits from outside groups and more than a little scrutiny from the congressional committees. The process of FCC rulemaking — which allots months for public comment after the initial notice — would give ample time for outside groups to build a SOPA-style campaign against the new rules.
That leaves Trump’s FCC in an uncomfortable place. It has the power to overturn Wheeler’s net neutrality order, but crafting and instituting a replacement plan could take years, and do lasting damage to the agency’s reputation. “In terms of the commission’s credibility, it would just look so awful,” says Michael Copps, a special adviser at Common Cause who served as commissioner on the FCC from 2001 to 2011. “If I were Trump, I would see it as a battle that’s been fought already.”
Net neutrality’s best protection is inertia
The easiest way out of that deadlock would be through Congress, which could pass a law amending Title II of the Communications Act and granting more limited powers to the FCC. Versions of that bill have been kicking around Congress for some time, most recently as Thune-Upton. If such a bill succeeds, it would supercede everything FCC commissioners and courts have done so far, effectively blocking future net neutrality orders. Now that Republicans control both houses of Congress, some have predicted the bill will be revived, but it remains to be seen whether there’s political will for such a fight.
In both cases, net neutrality’s best protection is inertia. Title II classification isn’t the only issue facing the FCC, and reopening that fight would mean years of legal and regulatory squabbles — energy that could be better spent taking up data sharing, broadcast spectrum, and any number of other issues. Inertia is particularly strong in Congress, which will also be working through massive policy shifts on health care and immigration. As pivotal as Title II is for the internet, it’s still an afterthought for most of Washington, and that may keep it at the bottom of the agenda.
Allowing zero rating to grow unchecked
There are also plenty of ways to weaken net neutrality without repealing it entirely. Wheeler’s FCC took a wait-and-see approach to zero-rated data plans, which allow companies to exempt certain services from data charges. That approach has become particularly popular for mobile video, most recently with AT&T’s controversial new DirecTV Now service, which joins similar offerings from Verizon and T-Mobile. Facebook has taken advantage of zero rating internationally with its Free Basics service, which it’s reportedly considered expanding to the US. Simply allowing zero rating to grow unchecked would allow mobile services to bypass net neutrality’s most important rules.
The FCC’s new rules on data-sharing could also come under fire. After claiming Title II authorities, the FCC laid out new restrictions for how providers like Comcast, Verizon, and AT&T collect data, requiring explicit user consent before any data is used for ad-targeting. As those providers merge with content companies (NBCU, AOL, and Time Warner, respectively), that ad-targeting data is increasingly valuable, and companies are eager to roll back the rules. With Trump in the White House, those rules are more vulnerable than ever.
It’s still very early, and without a named commissioner, it’s hard to say anything for certain. Trump might ignore the FCC entirely, or the agency might focus on unrelated issues. But coming off an unusually active term under chairman Wheeler, it’s clear the wave of aggressive telecom regulation is over. What’s less clear is what will come next, whether the next FCC will try to undo Wheeler’s work wholesale, chip away at it slowly, or strike out a completely new direction.
In the long term, at least some neutrality advocates are still optimistic. “It’s obvious to me that if you go 20 years down the line, we’re going to have net neutrality,” says Copps. “Are we just going to back and forth until we finally figure it out?”