Net neutrality policy still up in the air under Trump

The FCC doesn't yet have a plan, and Congress may move forward on its own

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Credit: Twitter/Free Press

During his campaign, U.S. President Donald Trump called the Federal Communications Commission's net neutrality rules a "top-down power grab," leading many observers to expect a quick repeal.

Trump's presidency is still in its infancy and it's unclear what his administration will do about the hot-button issue.

It's difficult to determine what direction the unpredictable Trump administration will take, said Nathan White, senior legislative manager at Access Now, a digital rights group.

"The world is a very complicated place right now," he said. "I don't think we can get too far out front and predict the future."

Ajit Pai, Trump's pick for chairman of the FCC, has promised, however, to "fire up the weed whacker" and kill net neutrality and other regulations passed by the FCC during President Barack Obama's administration.

But this week, Pai declined to outline a path forward on net neutrality, saying only that he continues to oppose the FCC's 2015 decision to reclassify broadband as a regulated common carrier under Title II of the Telecommunications Act.

"We haven’t made any determinations at this time," Pai said during a press conference Tuesday. "My position is pretty simple. I favor a free and open Internet and I oppose Title II. That's pretty much all I can say about that topic."

The Republican-controlled Congress may take a different path than a possible repeal of the rules at the FCC.

Lawmakers will likely push for legislation, similar to a proposal from early 2015, that would write basic net neutrality protections into law, Senator John Thune, the Republican chairman of the Senate Commerce, Science, and Transportation Committee, said recently. A law passed by Congress would supersede any actions taken at the FCC.

Even though the FCC may move to repeal its reclassification, Thune called for a bipartisan agreement on some baseline rules. A Republican-controlled FCC moving to repeal the net neutrality rules "may help inspire some of my Democrat colleagues to embrace the idea that a bipartisan, legislative solution is the best possible outcome," he said in a Jan. 23 speech.

Internet companies and users need certainty about long-term rules that won't change every time there's a new party in power, Thune said. 

"We need clear and reasonable rules for the digital road that Internet companies, broadband providers, and end users can easily understand," he added. "Complex and ambiguous regulations that shift with the political winds aren’t in anyone’s best interest."

It's unclear, however, if Congress will have "the attention or the political will" to move forward with a bill, said Access Now's White. 

Meanwhile, supporters of strong net neutrality rules vow to fight any effort to repeal the rules and rescind the classification of broadband as a regulated service. About 4 million people submitted comments to the FCC during its recent net neutrality rulemaking proceeding, with the large majority favoring strong net neutrality rules, supporters noted. 

Net neutrality advocates will look to fire up that crowd again if Pai or Trump move to kill the rules.

Without Title II authority for the rules, broadband providers may be able to change websites for paid traffic prioritization, said Holmes Wilson, co-founder of digital rights group Fight for the Future.

Recent court rulings were "pretty clear" that the FCC can't ban paid prioritization without Title II authority, he said by email. "If they’re talking about reclassifying back out of Title II, people should see that as an underhanded way to kill net neutrality and give companies like Comcast free reign to shake down your favorite sites," Wilson added.

Pai and the FCC would need to explain a major shift in policy two years after the FCC passed its rules, supporters of the regulations said.

"Chairman Pai's FCC cannot move quickly to dismantle protections supported by the vast majority of the American people," said Matt Wood, policy director at digital rights group Free Press. "While Pai's boss, Donald Trump, may have little respect for the rule of law, administrative law still binds the FCC."

Congress could pass legislation, but that's not a given, Wood added. That's "assuming this Congress can get anything done, unlike its recent do-nothing predecessors," he said. "But the current rules are the common-sense floor for any new law, not the overreach that members of the current majority in Congress and the FCC preposterously make them out to be."