Supporters of net neutrality are preparing to defend FCC regulations passed two years ago in the face of what is increasingly looking like a determined effort by the Trump Administration to undermine them.
"Net neutrality sounds good, but it means different things to different people, making it easy for special interests to manipulate it for narrow political ends," argued Roslyn Layton in January of 2015, in a post published soon after the Open Internet Order was approved in a partisan 3-2 vote by the FCC.
She continued: "Using their own definitions, companies such as Netflix hijack the language of net neutrality to lobby for regulatory favors."
In many respects, her opposition to net neutrality is what defines Layton – as well as the other two transition heads, Jeff Eisenach and Mark Jamison – more than any other attribute or position.
That has not gone unnoticed by the large group of advocates and tech companies that have repeatedly formed a strong lobbying group to knock back efforts by other pressure groups, including the intellectual property lobby and Big Cable.
That group beat back the anti-piracy legislation in 2012 (SOPA and PIPA) and famously turned their websites black as a way of alerting millions of American consumers to the issue, and was a critical voice in shifting the FCC's position on net neutrality and in particular the decision to reclassify internet access providers as "Title II" providers under the law.
Those same networks have picked up again in recent weeks and are preparing for another lobbying effort, depending on what approach the Trump Administration and Congressional Republicans decide to take with respect to the Open Internet Order.
Meanwhile, Washington watcher Politico has named [paywalled] the people that it is hearing are under consideration by the Trump Administration to replace Tom Wheeler as FCC chair:
- Indiana state senator Brandt Hershman
- Wisconsin public service commissioner Ellen Nowak
- Congresswoman Marsha Blackburn
- President of the Entertainment Software Association trade group, and former head of the National Telecommunications and Information Administration, Mike Gallagher
The seeming frontrunner, Hershman, has authored a number of bills that favor the cable industry and so is seen as likely to take a very anti-net neutrality position.
All of which raises the question: what happens next?
The first issue is what happens to two existing FCC Commissioners. One, Jessica Rosenworcel, has been held in limbo for nearly a year by Congress, which until very recently refused to confirm her reappointment due to a political struggle among senate Democrats.
Unless she is confirmed by the end of the year, she will no longer be a Commissioner, leaving just four of five commissioners. That may prompt FCC chair Tom Wheeler to refuse to follow tradition and step down for the incoming Trump Administration, and instead stay in place until his term officially ends in 2018.
Either way, the FCC is likely to be gridlocked for the immediate future. Even if it isn't, the federal regulator is very unlikely to simply discard its own Open Internet Order without having a comprehensive replacement. And that would likely be a lengthy and messy process.
The other option is for Congress itself to pass a new law that updates telecommunications to sync with the internet era, and so supercede any FCC rules.
In reality, the United States needs a new law to bring the 1996 Telecommunications Act up to date. Back then, consideration of the internet comprised little more than a single vague paragraph.
That effort would be a huge undertaking however, and it is uncertain whether Congress has the stomach for it, even with a Republican majority in both houses.
It's also worth pointing out that the current FCC rules are really a big fudge because it wasn't thought that new legislation would be possible. The entire Open Internet Order hinges on reclassifying broadband providers as Title II providers – a label that comes from even earlier legislation, approved in 1934 no less.
Due to how out-of-date that legislation is, the FCC also dismissed most of the actual language around Title II for its internet order, retaining just six of the 76 sections. So, before net neutrality advocates get too excited about protecting the FCC's rules, they should consider the fact that they are very far from good legislation.
It is possible – just possible – that Congress could decide that the net neutrality argument is sufficiently important to start a whole new debate about telecom policy in the age of the internet. And through that process, a full public debate could prove much more effective for the country than the FCC's controversial ruling.
But of course, this is Washington, and it's far more likely that the Trump Administration and Republicans will engage in warfare to unravel previous decisions rather than work on building a new consensus.
In that sense, the fight over net neutrality will be the first real test of the power of the new internet economy in lobbying Washington in the post-Obama era.
In that fight, we would like to mischievously note one thing: in the same post in which Trump's new advisor, Roslyn Layton, laid out why the net neutrality rules had to be removed, she dug into the impact it would have.
"For starters," she wrote, "expect a price increase of at least $150 per year due to new federal, state, and local fees on your Internet subscription."
It's been two years now and you may have noticed that never happened. Nor does it threaten to happen. ®