Trump’s victory could spell the end of the FCC’s net neutrality regulations

Federal Communications Commission Chairman Tom Wheeler, shown in 2014, said he hasn't decided on a departure date.
Federal Communications Commission Chairman Tom Wheeler, shown in 2014, said he hasn’t decided on a departure date.
(Alex Wong / Getty Images)

Donald Trump’s victory means that Republicans soon will take control of the Federal Communications Commission. That could spell the end for net neutrality regulations and other initiatives of the agency’s hard-charging Democratic chairman.

The regulations imposed utility-like oversight of broadband providers in an attempt to ensure the free flow of online content. President Obama and liberal activists strongly backed the tough regulations over intense objections of the industry and many Republicans — including Trump.

“I think it’s an important thing to remember that taking a fast, fair and open Internet away from the public and away from those who use it to offer innovative new services to the public would be a real mistake,” FCC Chairman Tom Wheeler warned Thursday about net neutrality, his signature accomplishment since taking office three years ago.


A new Republican-led FCC is expected to try to reverse the regulations. Congressional Republicans also could attempt to override the rules with legislation, an effort that stalled in 2013 because of a sure Obama veto.

But it could take a while before a Republican-controlled FCC is in position to make any changes.

The failure of the Senate so far to confirm Democratic Commissioner Jessica Rosenworcel to a new five-year term could lead to more upheaval at the nation’s telecommunications regulator. The FCC now has three Democrats and two Republicans.

By early next year, it’s possible that that all three Democrats will be gone from the commission. That would leave the two remaining Republicans short of the quorum they would need to enact or reverse regulations until replacements are nominated and confirmed, a process that could take several months.

Wheeler said Thursday he had not yet decided on a departure date. He could stay on as a commissioner until late 2018, but former chairmen rarely do that. Roseworcel’s term ends when Congress adjourns at the end of the year unless she is reconfirmed. Democrat Mignon Clyburn, whose second term ends in early 2018, could decide to step down as well. She has served since 2009.

The presidential election results already have affected the FCC’s operations.

On Thursday, Wheeler removed all but one minor issue from the commission’s monthly meeting agenda, after key House and Senate Republicans publicly urged him not to consider on any controversial topics with a transfer in power looming after Trump is inaugurated as president on Jan. 20.


Among the deleted items was a proposal to overhaul the market for business data services, which was opposed by AT&T Inc. and other large telecommunications companies.

“Certain of my colleagues identified the items on today’s proposed agenda as controversial and asked that they not be considered today,” Wheeler told reporters after the eight-minute meeting. “I hope that this doesn’t mean that these issues won’t be quickly addressed after the transfer of leadership of this agency.”

What appears to be almost certainly dead is another controversial Wheeler proposal to open up the market for cable and satellite set-top boxes — an effort the pay TV industry strongly opposes.

Trump gets to designate a new chairman after he takes office and, assuming the departure of Wheeler or Rosenworcel, that appointment will shift the FCC’s majority to the Republicans.

Once Republicans are in control, they could try to reverse regulations they opposed.

One target could be new rules approved last month requiring high-speed Internet service providers to get customer permission before using or sharing sensitive personal data. The privacy regulations, opposed by broadband companies, passed on a partisan 3-2 vote over the objections of Republican Commissioners Mike O’Rielly and Ajit Pai.

But the biggest target is net neutrality.

In enacting the regulations by a 3-2 vote in 2015. the FCC classified broadband as a more highly regulated service under Title 2 of the telecommunications law. The classification gave the FCC more authority over broadband providers, also opening the door for the agency to enact the privacy regulations.


Republicans didn’t oppose the goals of net neutrality — to prohibit broadband companies from slowing Internet speeds for some content such as video streams, selling faster lanes for delivering data or otherwise discriminating against any legal online material. But they strongly objected to classifying broadband providers for the same type of regulatory oversight as conventional phone companies.

Wheeler said Thursday that the classification was the difference between “empty net neutrality” and “meaningful net neutrality” backed up by stronger FCC authority.

About 4 million people filed comments with the FCC when it was considering the net neutrality rules, with most asking for strong regulation.

But Trump publicly expressed his opposition at the time.

“Obama’s attack on the Internet is another top-down power grab,” he tweeted in November 2014.

It’s unclear who Trump would nominate to be FCC chairman and if the new president would push to reverse the net neutrality rules.

Trump spokeswoman Hope Hicks and Jeffrey Eisenach, who is handling telecommunications issues for Trump’s transition, did not respond to email requests for comment.


But Eisenach, a telecommunications industry consultant and visiting scholar at the conservative American Enterprise Institute think tank, suggested last month that net neutrality could be in trouble.

“What I don’t think a President Trump would do, and would hope he wouldn’t do, is to intervene to instruct a regulatory agency how to issue a particular regulation,” Eisenach said on C-Span’s “The Communicators” program. “I think in general, taking his broader views on regulation into account, you would expect him to appoint people to the FCC who would be inclined to take a less regulatory position.”

For supporters of net neutrality, that signals trouble.

“They have been very much opposed to net neutrality” and specifically the regulatory reclassification, John Bergmayer, senior counsel at digital rights group Public Knowledge, said of Republicans. “I think they would try to revisit that.”

But he and other experts said a reversal might not be that easy. In June, a federal appellate court panel dismissed a lawsuit by AT&T Inc., other telecom companies and industry trade groups that argued the FCC exceeded its authority in approving the regulations.

So the FCC would have to conduct a thorough rule-making procedure to justify its reasons for changing course. Former Democratic FCC Commissioner Michael Copps said Republicans would risk a backlash if they take on net neutrality.

“I think there would be a rising up around the nation from people who were active the first time around,” said Copps, a special advisor on media and democracy reform at public interest group Common Cause.


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