How Trump will attack the FCC's net neutrality rules

Repealing the U.S. Federal Communications Commission's less than 2-year-old net neutrality rules appears to be a top tech priority for President-elect Donald Trump, but it may not be an easy road.

Trump blasted net neutrality rules in a November 2014 tweet, saying it was a "top-down power grab" that would apparently require broadband providers to give equal time to liberal and conservative media. There are no such requirements in the FCC's net neutrality rules, however; broadband users determine what media they see.

Look for Republicans in Congress to re-introduce legislation to repeal the rules early next year, but with only a narrow majority in the Senate, they are likely to be blocked by Democrats, who can filibuster to stall a bill.

Instead, expect quick action at the FCC itself, which will have a 3-2 Republican majority under a Trump presidency. After a June appeals court ruling upholding the FCC rules, the agency has broad authority to basically change its mind and repeal, or pass, regulations without showing a change in market conditions.

"Agencies are allowed to change their mind," said Matt Wood, policy director at digital rights group Free Press. "But they have to articulate a rational basis for doing that, and a rational basis for the new decision they reach, too."

Republicans who opposed the net neutrality rules, which prohibit broadband providers from selectively blocking or slowing internet content, already believe they had a rational basis for opposing the rules. So that's not a major roadblock.

But digital rights groups and other net neutrality backers are gearing up for a fight. Before the current, Democrat-controlled, FCC passed the rules, the agency received about 4 million public comments on its net neutrality proposal, with the vast majority voicing support for strong rules.

"We'll have the evidence and the law on our side to fight even a new majority of the FCC commissioners if we need to," Wood said by email. "Net Neutrality is a wildly popular safeguard, grounded not just in common sense but in the law as well."

Many of the opponents of the FCC's net neutrality rules objected most strongly to the agency's reclassification of broadband as a regulated, common-carrier service, and some observers expect most of the focus in the Trump administration to be a repeal of that so-called Title II classification.

If the FCC repeals those telephone-style regulations, the broadband industry will likely advance a self-regulatory plan promising not to block web traffic, said Berin Szóka, president of free-market think tank TechFreedom. Those promises would then be enforced by the Federal Trade Commission, not the FCC, similar to how the FTC now enforces privacy promises made by companies.

Another alternative would be for the FCC to repeal broadband reclassification but pass basic net neutrality rules, said Doug Brake, telecom analyst at the Information Technology and Innovation Foundation, a tech-focused think tank that opposed the FCC's reclassification of broadband.

"A lot of people think the internet was doing pretty well as it was" before the FCC reclassified broadband, Brake said.

But basic net neutrality rules without the telephone-style regulations could end up being similar to two earlier net neutrality attempts at the FCC that were successfully challenged in court.

"Those who don’t remember the mistakes of the past decade are doomed to repeat them, apparently," Free Press' Wood said. "The FCC tried and failed twice to craft patchwork net neutrality rules while ignoring its clear and comprehensive authority in Title II to prevent unreasonable discrimination."

Many net neutrality backers won't accept watered-down rules, he added. "Fake net neutrality is unacceptable, and it won’t fly with the millions of internet users who demanded and won the real thing just last year."

Although Republicans in Congress could attempt to attach an anti-net neutrality rider to a must-pass spending bill, the FCC is the place to watch in the first few months of 2017. Trump has appointed two net neutrality critics to his FCC transition team, one of whom has questioned whether the FCC is needed, but it's unclear who he will appoint as FCC chairman.

Eventually, if policymakers want long-lasting net neutrality rules, the issue may come back to Congress, TechFreedom's Szóka said. In early 2015, top Republicans proposed a bill that would have prohibited broadband providers from selectively blocking or slowing Web content, while allowing them to engage in "reasonable" network management.

Democrats rejected that effort as the FCC moved to reclassify broadband, but if they want net neutrality protections for broadband users, they should come back to the table, he said.

"A legislative compromise has always been within their grasp," he said. Without congressional action, "this issue keeps going on and on and ping-pongs back and forth between administrations."