FCC Chairman Tom Wheeler has said it would be a “mistake” to roll back some or all of the landmark – and controversial – rules passed under his watch.
But as President-elect Donald Trump continues to name key figures in the run up to his inauguration, it increasingly appears that measures like net neutrality, Title II, and broadband privacy will be in danger comes January.
Earlier this week, Trump announced the appointment of Aalborg University professor Roslyn Layton as the third member of his FCC landing team. Like prior appointees Jeff Eisenach and Mark Jamison, Layton has been a vocal opponent of net neutrality.
In a co-authored piece with Jamison last year, Layton noted the FCC’s implementation of net neutrality rules was “inconsistent with a stable, evidence-based regulatory approach” and distracted the FCC from other responsibilities. Further, Layton and Jamison posited the FCC had reached beyond the authority granted to it in the last enabling statue in 1996 in pushing net neutrality.
“It may be the case that net neutrality is needed, but Congress has not updated the FCC’s toolbox to deliver it,” they wrote.
More recently, in November, Layton wrote in an op-ed that “the Chinese succeed in making significant mobile app innovation without having explicit open internet rules. This contradicts the regulatory dogma and suggests that policymakers should rethink their assumptions about how internet innovation works.”
And Trump’s slate of candidates for FCC Chairman doesn’t look any better for Wheeler’s rules.
In addition to current senior Republican FCC Commissioner Ajit Pai – who has been one of the dissenting votes on many of the measures in question – as well as Eisenach and former AT&T and Comcast CTO David Fellows, Trump is reportedly considering Indiana state senator and deregulation advocate Brandy Hershman for the role.
Visions of revision
But what would a roll back of any or all of these major measures look like? How easy would it be? And what would be the top target?
According to PwC Technology, Media, and Telecommunications Risk and Regulatory Leader David Sapin, the rules may not be as easily unwound as one might think, but there are three main routes a new FCC body could take to get started.
First, Sapin said, the FCC could initiate a full rulemaking process – including a public comment period – in order to pass fresh measures revoking the old. But, Sapin noted, that could be a long, messy process given the fact that the original proceeding on net neutrality in particular received more than 1.1 million comments.
“I don’t know if anybody really wants to open up the public debate on that again,” Sapin said.
The second – and perhaps easiest – option for the new FCC would be to change tack on how the existing rules are enforced. Sapin indicated the commission could “take a step back” from heavy-handed enforcement of net neutrality and Title II regulations, and even relax enforcement of certain portions of the broadband privacy measure as well.
A third option – which Sapin said could perhaps be dubbed the “nuclear option” – would be for Congress to step in and pass legislation revoking the FCC’s Title II classification. That, he said, would be a dream scenario for many telecom operators, but noted such action is likely not a top priority for legislators.
“Title II would be the big fish if they can land it because it wipes out everything else,” Sapin said. “The underpinning of net neutrality and privacy would just disappear.”
But there are some sticking points.
In the case of Title II, Anna-Maria Kovacs, visiting senior policy scholar at the Georgetown Center for Business and Public Policy, pointed out the rationale for Title II was upheld in the D.C. Circuit Court of Appeals. Should another legal challenge be mounted, she said, it would have to go through the Supreme Court. Like Sapin, Kovacs said “a new FCC could simply not implement provisions of the Order” instead of subjecting itself to a legal, legislative, or procedural tangle.
When it comes to net neutrality, former FCC commissioner and special advisor to Common Cause and Media and Democracy Reform Michael Copps said the incoming administration may also have to battle public perception.
“In a way I hope Trump himself looks a little more expansively at who elected him,” Copps said. “A lot of people in those places who voted for Trump aren’t wild about gatekeepers for the Internet or rising prices for broadband. I don’t think a large part of his base is very interested in getting rid of consumer protections and the like. We’ve been back and forth on this – the fight’s over. Why would he want to reopen the fight again if a lot of his voters aren’t enthused about it? I think it would be a huge mistake.”
Instead of rehashing old debates, Copps argued the FCC’s – and public’s – time going forward would be better spent addressing new questions that are arising as the Internet evolves, things like consolidation among Internet companies, Internet jobs, and online news and media.
“It’s time to have a little vision about this,” Copps said. “This is something that’s going to transform our future.”
Still, Sapin said many of the rules from Wheeler’s tenure are likely to be unwound “one way or another,” but he noted it’s “not going to happen overnight.”
“I think all of these things may happen, but it may take a few years,” he said.
Filed Under: Industry regulations + certifications