President-elect Donald Trump has hired two strong opponents of net neutrality rules to head up his transition team for the US Federal Communications Commission (FCC).
Economist Jeff Eisenach, who worked in the Reagan Administration at the Federal Trade Commission (FTC) and does a lot of corporate work for Verizon, and Mark Jamison, a former Sprint lobbyist now at the University of Florida, were both very public in their opposition to net neutrality rules as they went through the FCC process in 2014.
Eisenach called net neutrality "crony capitalism" and claimed it would cause terrible damage; Jamison publicly called on Congress to repeal the rules. Now both have an opportunity to unravel them, and to stop a number of other measures unpopular with cable companies from ever getting to a vote.
The FCC has five commissioners, all approved by the President: two are put forward by the Democratic Party; two by the Republican Party; and the chair is chosen by the President.
When a new administration takes over, the FCC chair typically resigns, leaving the seat open for a presidential pick. But this year things may work out differently, since current chair Tom Wheeler has refused to say whether he will stand down, particularly given the fact that another Democratic commissioner may also be missing come January.
Wheeler's term officially ends in November 2018, and with Republicans seemingly set on unraveling much of what Wheeler has pushed through in the past three years, the feisty former lobbyist may stay on board in an effort to protect his policies.
The political intrigue is all the more intense due to maneuvering around another FCC commissioner: Jessica Rosenworcel. Rosenworcel was supposed to have been reselected as a commissioner last year, but her nomination was delayed by Congressional Republicans as part of a broader effort to frustrate and pressure the Obama Administration.
Stuck in the middle of two warring factions, Rosenworcel responded by taking a middle line – raising questions over Wheeler's plan to get rid of the cable-box rip-off, causing approval votes to be postponed.
With Donald Trump winning the presidency and the Republicans retaining both houses, Rosenworcel has now come under fire by her own side. Democratic Senators have put a hold on her nomination in order to find a candidate that will take a stronger Democratic Party line on consumer protection.
Unless she is approved by the end of the year, Rosenworcel will have to leave the FCC and a new commissioner would need to be nominated, selected and approved. If Wheeler also steps down, that would give Republicans a majority at the FCC, and the communications regulator may start undermining its previous decisions.
The result of Wheeler staying? Yet one more government institution in deadlock due to bi-partisan bickering.
Net neutrality and other points
So what does this mean for the signature FCC policy of net neutrality, where cable companies are prevented by law from prioritizing or interfering with data streams?
Well, like many key policies approved by the Obama Administration, it could be slowly unraveled by a Republican Congress and a Trump Administration working together.
The Open Internet Order is effectively law and has been backed up by the courts, so it cannot simply be revoked by a future FCC vote without some kind of replacement – the previous internet-governing rules were thrown out by Washington DC's courts. The FCC could leave the rules as-is and then undermine them by failing to enforce the regulations. The rules can also be overturned by legislation passed by Congress, and it seems likely that Republicans will try to do precisely that.
However, as with the Affordable Care Act, aka Obamacare, it's not as easy as simply deleting the existing system; it has to be replaced with something. And new rules covering the internet and internet access would likely require extensive review and consideration.
While net neutrality will be subject to a long process, other issues going through the FCC that cable companies are opposed to will likely not be, especially with Eisenach and Jamison at the head of the transition team.
Wheeler's determined efforts to end the multi-billion-dollar cable box rip-off are likely dead. It is the fourth time that the FCC has tried to break Big Cable's stranglehold on Americans' public TV viewing, and it has failed yet again.
Earlier this month, faced with an increasingly rancorous Republican party that had just won the elections, Wheeler felt obliged to effectively wipe out the entire agenda of the federal regulator's November meeting following public calls for the FCC to stop pursuing controversial policies.
In some cases, that may not be a bad thing, such as the FCC's wrongheaded attempt to decide on new privacy rulesa despite not knowing what it was doing. Or its various attempts to become the internet's FTC despite a glaring lack of experience.
But in other cases, the consumer will undoubtedly lose out to huge cable companies – such as the FCC using its authority to say that broadband speeds were too slow in the US, enabling it to add pressure to make improvements.
Down the plughole
In many respects, Wheeler and the FCC are reaping what they sowed. The regulator had largely avoided being sucked into the partisan warfare that has brought Washington to a standstill.
But once Wheeler decided to go all-in on net neutrality and so took a determined stand against Big Cable and the Republican Party, the seal was broken. From there, he started down a highly partisan path, using his two Democratic colleagues to vote through measures vigorously opposed by the two Republican commissioners. In breaking with Big Cable, Wheeler embraced Big Internet, with companies like Google enjoying extraordinary behind-the-scenes influence.
In a sign that partisanship simply leads to worse partisanship, however, the two Republican commissioners are far from blameless, with commissioner Ajit Pai repeatedly railing against his colleagues in extreme terms – often opposing things purely for opposition's sake. He notably refused to assist with a congressional review looking into accusations of a coordinated campaign against net neutrality by FCC commissioner and congressional Republicans – something that likely broke numerous federal rules.
Pai's colleague, Michael O'Reilly, has been less rabid and has notably spend a lot of his time trying to force the FCC itself to enter the 21st century and get rid of some of its worst failings and antiquated procedures – approaches that has been roundly opposed by the institution.
It is notable, however, that in the hyper-partisan Washington world it is the over-caffeinated Pai rather than the more thoughtful O'Reilly that has started being promoted as a possible future chair once Wheeler either resigns or leaves.
That fervent desire to undo what the other side put in place, almost regardless of merit, has been given a big boost with Trump's new FCC transition team. We can expect to see the FCC join the long list of institutions forced into the partisan battleground. ®