Republicans are preparing a full-scale assault on the FCC itself.
It's no secret that President Trump opposes net neutrality. He made that clear years ago with a characteristically bizarre Twitter attack against the internet's open access principle—an attack that vividly demonstrated his fundamental ignorance about how the internet actually works.
Now, Trump's hand-picked Federal Communications Commission chief, Republican Ajit Pai, is preparing to work with the GOP Congress to roll back Obama-era net neutrality protections as part of the escalating Republican assault on consumer safeguards across broad swaths of the US economy.
Net neutrality is the principle that all legal internet content and services should be equally accessible to consumers. It means that internet service providers (ISPs) like Comcast, Verizon or AT&T can't prioritize their own online services or discriminate against rival offerings. It also means they can't block websites that provide controversial or objectionable viewpoints.
Pai, a former Verizon lawyer, met on Tuesday with broadband industry officials to discuss how best to dismantle the legal basis underpinning the FCC's 2015 Open Internet net neutrality policy, according to multiple reports. Pai is expected to call later this month for a shift in broadband oversight from the FCC to the Federal Trade Commission (FTC), a move that would dramatically curtail the FCC's consumer protection role.
Open internet advocates argue that the FCC's net neutrality policy is crucial for US economic growth, online innovation, civic empowerment and free speech. Without net neutrality, many open advocates argue, companies like Google, Facebook, Twitter, Skype, Netflix and other so-called "edge providers" might have been snuffed out in their infancy by the telecom giants whose pipes these firms use to reach consumers.
"It took a decade to win the fight for net neutrality, and people will not sit by silently when politicians threaten to take it away."
The principles of openness and accessibility that underpin net neutrality were baked into the internet's original architecture, and for the most part these concepts have prevailed for the last several decades. But these principles are now threatened as never before under the Trump administration. That's why open internet advocates are bracing for what's likely to be a lengthy, bruising fight to protect online freedom.
"If the FCC's Open Internet rules are directly jeopardized—either by the Trump administration and the FCC, or by Republicans and Democrats in Congress—we will work with our allies to mobilize on a mass scale," Mark Stanley, a senior official at the progressive organizing group Demand Progress, told Motherboard.
In 2015, the FCC codified net neutrality into federal law by reclassifying ISPs as "common carriers" under Title II of The Communications Act. This allowed the FCC to ensure open access to the internet, just like the agency has done for decades with the traditional phone system. It also put the FCC on solid legal footing after a decade of running battles and federal litigation between open internet advocates, industry lobbyists and federal regulators.
The nation's largest broadband giants like Comcast, AT&T and Verizon, and their Republican allies on Capitol Hill, hate the FCC's net neutrality policy. Why? Because it restricts their ability to reshape the internet into something resembling cable TV, a gatekeeper model in which broadband companies decide what websites and online services consumers can access—and at what price.
For years, these broadband industry giants have marshalled armies of high-paid lawyers and lobbyists to undermine net neutrality on Capitol Hill, in the federal courts, and at the FCC. And they've found a very receptive audience among many Republican lawmakers who are more than willing to parrot the industry line about "federal government overreach."
"Donald Trump is about to find out the hard way what happens when you mess with the internet."
Pai's distaste for the FCC's net neutrality policy has been well-documented. He claims he supports internet openness, and yet he bitterly opposed the 2015 FCC Open Internet order. He recently vowed to take a "weed whacker" to the net neutrality rules, along with other FCC policies that he claimed are "holding back investment, innovation, and job creation"—an assertion that is vigorously disputed by open internet advocates.
Not surprisingly, one of Pai's first moves as Trump's newly-chosen FCC chief was to halt the agency's net neutrality inquiry into zero-rating, a controversial practice in which ISPs exempt certain services from data caps, effectively favoring those offerings at the expense of rivals. Open internet advocates say that zero-rating practices violate open internet principles by creating the kind of discriminatory online environment that the FCC's net neutrality policy was designed to prevent.
Earlier this week, Trump signed a bill recently rammed through Congress by GOP lawmakers that eliminates FCC rules protecting consumers from broadband industry privacy abuses. This action, which was extremely unpopular across party lines, effectively gives ISPs like Comcast, AT&T and Verizon permission to track and sell private consumer data without user consent.
Now, Pai is coming after net neutrality itself—and Trump supports him. "The president pledged to reverse this type of federal overreach," White House press secretary Sean Spicer reminded reporters last week. It's worth noting that Trump can't kill the FCC's policy by fiat from the Oval Office—the FCC is supposed to be an independent agency, after all—but it's clear that Pai is more than willing to oblige the president.
How is Pai going to try take out the FCC's Title II net neutrality protections? He could launch a formal FCC proceeding designed to roll back the agency's rules, but that would be a highly controversial process that could take many months and would likely face federal litigation, not to mention a ferocious public backlash.
What's more likely, according to many tech policy experts, is that Pai starts the FCC rulemaking process in order to give Republicans lawmakers political cover to step in with a Deus ex machina piece of legislation stripping away the FCC's Title II authority and handing broadband oversight, including privacy and enforcement monitoring, to the FTC, while asking ISPs to make voluntary open internet commitments.
Capitol Hill Democrats are likely to mount a strong resistance. "You simply cannot claim to support the open internet and net neutrality rules while abandoning and attacking the legal framework that makes those rules possible," more than 30 Democratic lawmakers led by Rep. Keith Ellison from Minnesota wrote in a recent letter to Pai.
The inside-the-Beltway mechanics of how precisely Pai and his Republican allies on Capitol Hill plan to dismantle the FCC's net neutrality policy are already the subject of DC parlor games. But the procedural details should not obscure the core net neutrality principles at stake: Online innovation, civic empowerment, individual privacy, and free speech. It's these principles that net neutrality activists across the country are now mobilizing to defend.
"It took a decade to win the fight for net neutrality, and people will not sit by silently when politicians threaten to take it away," said Craig Aaron, President and CEO of DC-based public interest group Free Press. "They will defend the open internet and the free expression, economic innovation and popular organizing it makes possible. The system may be rigged in favor of corporate giants, but Donald Trump is about to find out the hard way what happens when you mess with the internet."