Net Neutrality May Be in Trouble Under Trump

Stan Ward

Stan Ward

November 17, 2016

With the election of Republican Donald Trump, net neutrality – the principle that any internet service provider must permit access to any content regardless of source – is in jeopardy. The rules enacted by President Obama’s Federal Communications Commission (FCC) may be on the way out. They will likely not only be under fire from a soon to be Republican-dominated FCC, but also from a right-leaning Congressional majority.

And if this dismantling is challenged by proponents of the recent FCC ruling, the challenge would have to be made before a potentially conservative Supreme Court. During his presidential campaign, Trump referred to net neutrality as “Obama’s  attack on the internet” and a “top-down power grab.” Another influential Republican, Senator Ted Cruz of Texas, also while campaigning in the primaries, dubbed it “Obamacare for the internet.”

Those in favor of net neutrality contend that without it, internet service providers (ISPs) could freely control the amount of bandwidth allotted to content providers. With net neutrality, consumers have free and equal access to all websites. Without net neutrality, companies such as Time Warner Cable, Comcast, AT&T, and other ISPs could vary the download speed of specific websites, and demand payment from high traffic, high bandwidth content sites.

Expressing my opinion on the ruling in this space months ago, I was less strident than Trump or Cruz, but still concerned about government regulations of any kind. Regulation often impedes progress and innovation, and ultimately leads to taxes and thus higher costs to be borne by consumers. I argued they are anathema to free markets. My colleagues at disagreed, and distanced themselves from my opinion. I must confess, I can see their point now. It was the regulations that were on the books before the net neutrality ruling that were anti-competitive.

Under the recent FCC ruling on net neutrality,  ISPs may not block or throttle lawful internet traffic or speed up web services in exchange for payments from online service providers. To thwart any attempts by opponents to go to court to overturn its decision, Tom Wheeler, the FCC chairman appointed by Obama, decided to reclassify broadband providers as common carriers under Title II of the Communications Act. Putting it under the auspices of Title II could be construed as a bending of the rules to get net neutrality rammed through. It’s just another reason for Republicans to overturn it (if they needed another reason aside from their anti-regulation rhetoric).

Previously, as a softer approach to the ticklish issue, a law was proposed by Senator John Thune (R-SD) and Congressman Fred Upton (R-MI). That proposed legislation last year would have prohibited blocking, throttling, and paid prioritization, the same as Wheeler’s rules did. But the Thune/Upton proposal also would have prevented the FCC from using Title II to regulate broadband. Wanting more ironclad assurance of an unfettered internet, Wheeler rejected the Republicans’ proposed compromise law. But to accomplish that, he put a watered-down ruling on the books.

In hindsight, this may have been a mistake, said Berin Szoka, president and founder of advocacy group TechFreedom, which was opposed to tying-in the ruling to Title II because it may actually give Trump more wiggle-room if he wants to weaken or dismantle the net neutrality ruling. He commented:

That was a colossal mistake on their part. Instead of strict bans on blocking, throttling, and paid prioritization, the government under Trump could decide to regulate all net neutrality matters on a case-by-case basis (now).

There’s always the hope that Trump will not take a uniformly conservative stance in some related policy battles. Let’s face it, given his all-over-the-map comments during the campaign, and no prior legislative experience by which to gauge him, he is a puzzle – a blank canvass coming to office. On the one hand, he has loudly proclaimed his opposition to the proposed AT&T–Time Warner merger deal, which now faces renewed doubt about its feasibility.

On the other hand, while he has proffered no concrete views on telecom issues, he appointed Jeffrey Eisenach, a paid Verizon consultant and long-time critic of FCC regulation, to his presidential transition team. This might be a signal of his intentions – a shot across the bow, as it were. But does it portend the scrapping of net neutrality rules?

Stay tuned.

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