The ascendence of Donald Trump to the presidency of the United States has created many questions regarding policies first established under President Barack Obama, including the future of net neutrality as it currently exists.
Former Federal Communications Chairman Tom Wheeler—under guidance from President Obama and pushed by an organized and engaged effort from the public and technology companies—established the Open Internet rules in 2015. The most reclassified internet service providers as common carriers under Title II of the Communications Act of 1934.
Less than two years into that ruling, we could see a drastic change. The Trump transition team that oversaw the administration’s approach to the FCC included three opponents to the current net neutrality laws—former Verizon consultant Jeff Eisenach, Sprint lobbyist Mark Jamison and internet and economics policy author Roslyn Layton.
Trump’s appointment to chair the FCC under his administration, Ajit Pai, referred to net neutrality as “regulatory overreach” and called for the commission to “fire up the weed whacker” to remove regulations he views as obstructive. He has already laid the groundwork for doing just that, chipping away at regulations established under the Open Internet rules and openly opposing the classification that protects net neutrality in its current form.
He will now have the opportunity to do just that, along with fellow Republican commissioner Michael O’Rielly and another appointment from the Trump administration.
While there will be two Democratic party appointees to the commission—commissioner Tom Wheeler stepped down at the start of the Trump administration and the Senate failed to reconfirm commissioner Jessica Rosenworcel, but Mignon Clyburn remains on the board—they will lack the votes to prevent drastic changes to the current rules.
What is important to understand about the net neutrality debate, as it comes back into focus under new FCC leadership, is the term will likely never go away.
Layton told International Business Times that she wasn’t sure where the idea that there would be no more net neutrality under President Trump came from, but said, “I don’t think that’s realistic.”
She insisted the debate over the rules had less to do with the principles and more to do with the regulatory tools used to enforce them.
Net neutrality prevents ISPs from slowing or throttling a user’s connection, ensures carriers can’t treat services differently or provide a favorable experience for one product while slowing access to another, and keeps service providers from block specific content.
“Blocking, throttling, transparency—no one is really opposed to that,” Roslyn said. “I don’t think there is really a debate on the basic tenants of net neutrality.”
That may be true depending on one’s definition of each principle and how far those protections should go.
Mark Jamison, the director of the Public Utility Research Center at the University of Florida, told IBT “some of what you call basic tenants can be valuable to some customers,” noting some customers might prefer to have their connection throttled rather than paying overage charges.
John Gasparini, tech policy fellow at nonprofit open internet advocacy group Public Knowledge, is less convinced the principles of net neutrality will remain a priority for the new administration.
“They aren’t going to say they are abolishing net neutrality,” he said. “They are going to say they are ‘protecting and supporting net neutrality as it should be.’ They are getting rid of reclassification.”
While net neutrality will carry on, it’s difficult to see exactly what shape it will take. Chairman Pai, newly appointed to head the commission by President Trump, has already started the process of targeting what he deems to be onerous regulations originating from Open Internet rules.
Jamison argues these changes will lead to faster introductions of new services, with the possibility of creating a “more dynamic digital ecosystem as networking providers introduce more features for content providers that increase value, and collaborate with content providers to customize networking features.”
According to Jamison, content providers may become more engaged in offering services as well, as they would now have a financial incentive to do so.
“Facebook offers voice and video services free of charge. But suppose that Facebook found that it needed some payment from customers in order to make it financially feasible to enhance these services,” he said. “Some people argue that this payment would make the services Title II services and subject Facebook to FCC regulations. Clearly Facebook would not want this and so would avoid any innovations that would imply a fee from customers.”
Jamison also suggests fast lanes could prove an asset to smaller companies looking for a competitive advantage, giving them the opportunity to pay to deliver their service at faster rates than existing competitors.
Interestingly, there seems to be agreement as to what may happen without Title II classification amongst its supporters and its detractors. Where the divide occurs is just how those changes would register for consumers.
Everything described by Jamison as a potential benefit registers as a fear for those who support net neutrality in its current form. The removal of specific rules and the defanging of the FCC would leave the internet not in the hands of of the regulatory body but of those who provide the service.
“The internet will be whatever AT&T, Comcast and other large ISPs decide they want it to be,” Gasparini warned, stating that without active protection from regulators, service providers will have “every incentive and every ability” to change the rules to suit their own needs while disadvantaging competitors.
While there may be a temptation to think startups could navigate around the biggest players by investing in paid advantages and finding ways to repackage their services to syphon customers, it seems much more likely the companies with an existing market share would shell out money in order to hold their position or even stifle the upstarts.
“If net neutrality did not exist in 2004, MySpace would pay for faster access to customers and Facebook might never have caught on,” said Nathan White, the senior legislative manager at digital rights activist organization Access Now.
White said stripping Open Internet rules would “enable telecommunications companies to be the gatekeepers of information with stifling impacts for freedom of speech, freedom of information, and democracy.”
According to Gasparini, net neutrality without Title II classification will “at the absolute most” contain provisions to prevent content blocking, connection throttling and paid prioritization at data—but may come with considerably fewer options for actually enforcing those standards.
What will disappear is the ability to examine the behaviors of service providers. Gasparini explained there will be “no general conduct standard” and no look at new practices from service providers that may harm consumers.
“It’s going to be net neutrality in name only, not in actual principle,” Gasparini said.
Challenges to Open Internet rules have already been mounted, and the FCC under the Obama administration was aggressive in its pursuit to stomp out what it deemed to be anti-competitive.
The commission came down harshly on AT&T and Verizon for violating net neutrality laws by exempting their own video streaming services from data caps that other services count against.
Those types of practices could become more common under a modified version of net neutrality; AT&T expressed interest in purchasing Time Warner, programming entity that owns CNN and HBO. It could offer streaming users those channels for free if they are on the AT&T network while others would have to pay—or wall off others entirely from accessing it.
While ownership of those content providers may provide a benefit to subscribers, it creates a troubling challenge to competitors who sit at a considerable disadvantage—and one that may only be defeated through financial means. Prior to the Open Internet rules, Netflix was forced to sign direct traffic deals with service providers Comcast and AT&T after experiencing throttling that made the service less accessible to consumers on those networks.
Those challenges could lead to more and more edge providers—creators of services provided over the internet, like Netflix—getting scooped up by ISPs out of necessity just to access the network.
There is concern of this type of competition creating an arms race that could monopolize an industry that already suffers from too little competition. There have already been attempts by ISPs to merge with other major players.
Last year, a $88 billion deal brought together Charter and Time Warner Cable, creating the second-largest broadband provider in the U.S.—an agreement that only went through after Comcast, the country’s largest ISP, tried to purchase Time Warner Cable to solidify its standing before getting blocked by the FCC.
Other deals are also likely on the table or at least may be inching closer. AT&T placed a bid to buy Time Warner (the content company, not the cable provider) for $85 billion but was held up by the FCC. The company has indicated it believes that deal will go through with the FCC under the direction of chairman Pai.
AT&T may also revisit its attempted purchase of T-Mobile, which was blocked in 2014—though T-Mobile is believed to have a number of major suitors, including Comcast and Dish Network.
It’s believed this consolidation would be less likely to be opposed under chairman Pai. Gasparini said the new head of the FCC objected to nearly every condition imposed on any merger during Chairman Wheeler’s time as chairman, supported the Comcast-Time Warner and “doesn’t have a long history of doing anything other than rubber-stamping those deals.”
The future of net neutrality as it currently exists is at best uncertain. Moving on from the Title II rules will require setting in motion a complex machine with many moving parts, but chairman Pai seems intent to fire it up. Once he does, a process will begin that could change the internet as it’s known today—but it be an easy process.
The first step for the FCC will be deciding just how much of the current rules it wants to enforce. Jamison, a member of the Trump transition team, said it would prove difficult undo Title II classification without help from Congress, but noted “the Commission can forbear from imposing restrictions on what customers can buy from internet service providers.”
Gasparini suggested a similar possibility, stating the FCC could “simply go the path of non-enforcement,” allowing the rules to remain on the books while refusing to enforce them.
Essentially, the FCC would just put a hold on using its regulatory powers and allow carriers to pursue business how they see fit. The first sign of this approach was delivered when chairman Pai closed the commission’s investigation into the zero rating practices of carriers. The decision put an end to a major area of inquiry from the Wheeler era of the FCC and was the first major blow to net neutrality rules.
Despite the changes being put forward by the current FCC, completely undoing Title II won’t be a simple task, and it almost assuredly won’t come without a fight.
“It’s not nearly so simple as waving a magic wand and it’s done,” Gasparini said.
He noted the last time the FCC asked the public about how it should approach net neutrality, it received four million comments urging it to treat the internet as a public utility. Were the FCC to revisit those rules, Gasparini said, “I would be surprised to see these things happen quietly.”
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