On the eve of Donald Trump’s inauguration, one of the biggest tech-related questions surrounding his administration is the future of net neutrality. The Federal Communications Commission under President Barack Obama has taken steps to prevent internet service providers from favoring certain kinds of content over others, thereby preserving the core principles of a free and open internet. But so far, it’s unclear whether Trump’s future FCC appointees will pursue the same policies or adopt the more hands-off approach favored by many Republicans.
Either way, experts say, the new administration could have profound consequences for how consumers use the internet and how internet-based companies connect with their customers.
Signs of a major policy shift are already in the air. In a report issued last week—just 10 days before Trump is to be sworn in—the FCC warned that AT&T and Verizon may be violating net neutrality rules by privileging their own streaming video services over those from competitors. But a Republican member of the FCC quickly denounced the document as a “regulatory spasm” unlikely to have significance after Trump takes office.
Both companies also criticized the report, saying their zero-rating programs have been welcomed by their customers, even as a group of Democratic senators praised the FCC’s ruling as a victory for consumers.
“This report evaluating whether zero rating plans violate net neutrality will help make sure the internet remains the free and open platform that it’s always been,” said Senator Al Franken, a Minnesota Democrat, in a statement.
In the meantime, commentators on both sides of the debate are expressing skepticism that regulators will continue on the same trajectory under the new administration. Trump and other prominent Republicans have critiqued the FCC’s policies as unnecessary regulation of a still-evolving industry, and FCC Chairman Tom Wheeler, an Obama appointee, is slated to depart the commission upon Trump’s inauguration.
That will leave the FCC’s board of commissioners with a Republican majority and an impetus to reverse course. “This report, which I only saw after the FCC released the document, does not reflect the views of the majority of Commissioners,” said FCC Commissioner Ajit Pai, a Republican, in a statement. “Fortunately, I am confident that this latest regulatory spasm will not have any impact on the Commission’s policymaking or enforcement activities following next week’s inauguration.”
Pai reportedly met with Trump this past weekend and has been floated as a possible candidate to replace Wheeler as FCC chairman.
In 2015, the FCC’s commissioners enacted its current net neutrality policy, known as the Open Internet Order, in a 3-2 vote along party lines. The order asserted the FCC’s right under federal law to regulate broadband internet similarly to traditional phone service, drawing praise from Democratic legislators and civil liberties groups like the American Civil Liberties Union and Electronic Frontier Foundation. They had expressed concern that internet providers could slow or even block controversial content or content from publishers unwilling or unable to pay to have it expedited to consumers.
“The FCC did the right thing by adopting strong rules for a free & open Internet,” Elizabeth Warren, the Democratic senator from Massachusetts, tweeted at the time. “This is a huge victory for the little guys.”
But telecom industry groups and Republican leaders slammed the ruling as a regulatory overreach, while Trump warned in a 2014 tweet that neutrality regulations would be used to “target conservative media.” Internet providers and trade groups sued unsuccessfully to overturn the order—a D.C. federal appeals court that had blocked previous net neutrality rules upheld the FCC’s right to regulate broadband similarly to other telecom services—and urged Congress to limit the agency’s authority.
Trump hasn’t commented publicly on the issue since his election, nor has he indicated who he’d nominate to fill Wheeler’s position or another open commissioner’s seat at the FCC. But some of his top tech advisers have backed calls to reduce the telecom regulator’s clout. Adviser Mark Jamison, an affiliate of the conservative American Enterprise Institute, seemed to call in October for sharply shrinking the agency. Internet mogul and Trump ally Peter Thiel has also questioned the need for net neutrality regulations.
“In terms of net neutrality, I think their intention is to deregulate the cable and telephone industry completely,” says Ernesto Omar Falcon, legislative counsel at the Electronic Frontier Foundation. “I think that’s their intention right off the get-go, and I think that’s a fight that we’ll have to engage in pretty quickly.”
Traditionally, the FCC doesn’t issue major new policies in the absence of a permanent chair, as will be the case after Wheeler’s departure, but it’s unclear whether the regulator will maintain that tradition under Trump, Falcon says. But any push to revoke the existing Open Internet Order would require a period of public comment and could potentially spur Congressional hearings as well, he says.
And while Republicans and telecom groups have publicly denounced the FCC rules, business groups are also averse to regulatory uncertainty and shifting legal frameworks, says Harold Feld, senior vice president at the pro-neutrality group Public Knowledge.
“Ted Cruz once said that net neutrality is Obamacare for the internet,” Feld says. “That turns out to be true, in that it turns out to be something that’s very complicated to repeal and replace, because the internet is critically import to everybody and businesses have invested lots of money in the understanding that this is a stable platform that’s gonna have some kind of net neutrality.”
A spokesman for the NCTA, an industry group formerly known as the National Cable & Telecommunications Association, declined to comment.
Trump in 2014 expressed concern about the rules stifling conservative voices, negatively comparing net neutrality to the FCC’s onetime Fairness Doctrine, which required broadcasters to present balanced coverage of controversial issues before it was rescinded under President Ronald Reagan. But more recently, Trump has repeatedly slammed mainstream media organizations for perceived bias against his campaign and rising administration.
“It is a totally one-sided, biased show–nothing funny at all,” he wrote in a post-election tweet about Saturday Night Live, broadcast by the Comcast-owned NBC. “Equal time for us?”
And Trump and his supporters may now worry about ISPs discriminating against conservative publishers like Breitbart News, the controversial website where Trump senior advisor Steve Bannon served as chairman, Feld suggests.
“I can’t see Trump or Steve Bannon–both of whom used unfiltered access to social media as a critical tool in their rise to power–want a situation in which the media companies they distrust like Comcast or AT&T can do what they like,” Feld wrote in a December blog post. “While they will certainly be all for deregulating companies, they will want to keep the threat of regulation over their heads.”