Under President Barack Obama, the Federal Communication Commission passed regulations that provided strong legal protections for network neutrality. These rules, which were strongly opposed by telecommunications giants such as Comcast and Verizon, were designed to create a level playing field for online companies.
Now Donald Trump has taken the first step toward gutting those regulations: He has named Ajit Pai to be the next chair of the FCC.
Pai has served as a Republican member of the five-member FCC since 2012. He’s known for his deregulatory views generally and his opposition to network neutrality in particular. In a December speech, he complained that there was too much “regulatory underbrush” at the FCC, and vowed to “fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”
Network neutrality is likely to be at the top of Pai’s hit list. But supporters of network neutrality rules say that repealing them would be a disaster for the open internet and online innovation.
“Consumers need to be worried about what this means for their access to the internet,” argues Chris Lewis of the pro-net neutrality group Public Knowledge. He warns that in a world without network neutrality rules, big ISPs like Comcast or Verizon could block access to certain websites or force customers to pay extra to reach sites they don’t own.
The president can appoint an existing FCC member chair without Senate approval, according to Ryan Radia, a legal expert at the Competitive Enterprise Institute. So Pai won’t have to go through the confirmation process in order to assume his new role.
Republicans will have a majority on the FCC and in Congress, so there’s likely nothing Democrats or liberal groups can do to stop Republicans from rolling back network neutrality rules. But it’s going to be a long, ugly fight that could tie up the FCC in the courts for years to come.
Advocates say network neutrality is the foundation of an open internet
When Mark Zuckerberg created Facebook in his Harvard dorm room, he didn’t need to ask Comcast, Verizon, or other internet service providers to add the site to their networks. He also didn’t have to pay these companies extra fees to ensure that Facebook would work as well as the websites of established companies. Instead, as soon as he created the Facebook website, it was automatically available from any internet-connected computer in the world.
That’s the basic idea behind network neutrality: that everyone’s online content and services get treated equally online, whether it’s something created by a college kid or a huge media company.
Advocates say network neutrality is a big reason there has been so much innovation on the internet over the past two decades. They worry that without net neutrality protections, the internet would become less hospitable to new companies and innovative ideas. For example, if large ISPs began requiring video-streaming sites to pay extra to deliver video content to their customers, the expense and hassle of negotiating deals with dozens of network owners could make it difficult for the next YouTube to get traction.
“We certainly worry about reducing consumer choices,” Lewis says. “Some of the startup companies that drive economic growth may not exist anymore.”
But opponents say that network neutrality rules are a solution in search of a problem. After all, formal network neutrality regulations are a relatively recent phenomenon. The concept didn’t even exist in the 1990s, and the FCC didn’t start trying to enforce network neutrality regulations until 2008.
Opponents argue that there was plenty of online innovation in the early years of the internet — before the FCC started to play net neutrality cop. So in their view, repealing Obama’s 2015 open internet rules will simply remove burdensome regulations from internet service providers, without endangering the internet’s openness.
Pai could lead the fight to repeal network neutrality rules
Pai, of course, is one of those opponents. He voted against the FCC’s 2015 network neutrality rules, and issued a scathing dissent against it — describing the network neutrality rules as a threat to internet freedom and arguing that it had undermined a bipartisan consensus against minimal regulation of the internet.
“The threat to Internet freedom has awakened a sleeping giant,” Pai wrote. “I am optimistic that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.”
Now it appears that Pai may get his wish with option No. 3: As the new FCC chair, he’ll be able to personally lead the effort to repeal the rules.
And that effort is likely to succeed. When Congress last overhauled telecom law in 1996, it gave the FCC broad discretion to craft telecommunications regulations. In 2015, Obama’s FCC used that discretion to significantly expand network neutrality protections without help from Congress. The move was upheld by the courts last year.
But of course, that authority works both ways: Now that Republicans are in power, they have broad discretion to pare back Obama’s rules.
It would take about a year for the FCC to go through the formal rulemaking process to repeal Obama’s network neutrality rules. Then the litigation would begin. When I asked Lewis if groups like his would challenge an effort to roll back network neutrality rules, he chuckled.
“I think it’s a certainty that we’ll challenge it,” he said.
But liberal groups will face an uphill battle, because the courts are relatively deferential to FCC decisions about how to apply telecommunications law. A 2005 Supreme Court decision blessed a Bush administration proposal to apply light regulation to the cable industry, and it would serve as a powerful precedent for rolling back Obama-era regulations in this area.