The monumental 2015 decision by the Federal Communications Commission reclassifying broadband providers as public utilities will probably be the first thing Republicans overturn when they take control of the agency next year, according to industry observers.
Liberals spent years fighting for the decision, which allowed the agency to impose “net neutrality” rules on the broadband industry before finally passing it in the form of last year’s Open Internet Order. The decision passed in a 3-2 vote along party lines, making it the No. 1 target for Republicans who are about to take the Democrats’ place in the majority.
“Net neutrality was never broadly popular,” said Fred Campbell, head of the nonprofit TechKnowledge. “It was popular primarily with techies who have a disproportionately large voice, because the Internet is a medium for communications that is dominated by techies.”
Campbell contended the decision, which reclassified broadband providers as Title II utilities under a 1934 law aimed at regulating telephone companies, was created at the direct behest of the president.
“It’s important to remember that even the current FCC didn’t intend to adopt a Title II approach for Internet regulation until President Obama got involved, presumably because Title II wasn’t supported by the analyses of expert staff at the FCC,” Campbell said.
Republicans have toyed with the idea of “defunding” the decision through the congressional appropriations process, which would have faced a significant hurdle in terms of requiring a presidential signature, and looked to the prospect that the rules could be overturned through the judicial process. Hope in the second possibility diminished after the February death of Supreme Court Justice Antonin Scalia.
After November’s election, the party faces the unexpected trifecta of holding the presidency, a majority on the agency and retaining Scalia’s seat on the court, setting up a possible scenario in which Congress, the courts and the agency itself are racing to overturn the rules.
Scott Cleland, chairman of e-forum group NetCompetition, said it’s most likely the FCC will win that race in early 2017. “It is at most immediate risk early next year with the new Trump-FCC publicly signaling that it has changed its mind,” Cleland said. “In addition, Congress could address it at its convenience via multiple processes and legislative vehicles.”
The implications of the repeal would be broad and immediate. The change would remove the agency’s authority to regulate the construction of broadband infrastructure, negate agency rules passed in October that regulate the privacy practices of broadband providers and substantially reduce the possibility that the FCC will turn its attention to websites.
“It will lift the overhang of infrastructure investment uncertainty in the marketplace,” Cleland argued. “It will have little effect on consumers because companies did not before, and do not in the future, have any commercial interest to disserve their customers, as the order preemptively and incorrectly supposed.”
Democrats may be resigned to the fact that their signature achievements on the agency over the past couple of years are likely to be overturned. The agency’s Democratic majority eliminated all of the items that had been set on the agenda for its November meeting, following a demand by congressional Republicans that they put further business on hold until next year.
Cleland said the situation is a lesson revealing the danger of passing policy by partisan majority, but didn’t rule out the possibility of compromising to reach similar goals by different means.
“The sad reality here is that congressional committee leaders offered net neutrality supporters multiple open opportunities over the last decade to work with Congress in a bipartisan fashion to codify a consensus permanent net neutrality compromise into law,” Cleland said.
“If net neutrality is really about best serving consumers and not about other agendas, hopefully there still is a legislative opportunity to forge a win-win outcome here for consumers.”
