Net Neutrality, FCC Itself Likely To Face Big Challenges Under Trump Administration

Image courtesy of Tom Richardson

In the two weeks since being named president-elect, Donald Trump has already named a handful of nominees to key positions and expanded his transition team to help determine who should fill in those other spots, and what policies will guide them. Based on the backgrounds of the two men heading up the FCC transition efforts, some of the Commission’s recent efforts will likely be rolled back, and the FCC’s entire role may be reconsidered.

The president-elect this week named two men to the FCC transition team — Mark Jamison and Jeffrey Eisenach — and those choices speak volumes about what we can expect the next administration’s communications agenda to be.

Under the direction of chairman Tom Wheeler, the FCC has taken a fairly aggressive approach to pro-consumer issues — occasionally surprising critics who expected former industry insider Wheeler to be, well, a little more dingo-like.

The biggest and highest-profile accomplishment of Wheeler’s FCC, in recent years, is net neutrality, which prevents service providers from actively blocking, speeding up, or slowing down connections to content and services. Not only did the Commission manage to adopt a new Open Internet Rule in 2015, but also this one — unlike previous attempts — has managed to survive legal challenges in court and remains the law of the land today.

The Commission has also pursued other consumer-friendly agenda items in recent years, some successfully and some not. Just in the last year, for example, the FCC has limited what ISPs can do with your personal data, launched the robocall strike force, expanded Lifeline to cover data, started to question if zero-rating is harmful, and said it wants to take on mandatory binding arbitration in telecom.

The Commission also tried to cap calling rates from prisons and jails, proposed updating business data services rules, proposed a label that would make it easier to compare data plans, and tried to require competition in the set-top box market. And that’s not even including consumer-friendly actions from earlier years, like helping to block the merger of Comcast and Time Warner Cable in 2015.

Naming Eisenach and Jamison to the FCC transition team, though, signals opposition from the incoming Trump administration to many of those FCC policies… and in fact, the FCC itself.

Net neutrality is one of the very few tech or telecom issues against which Trump himself has personally spoken out — so as you might expect, net neutrality is near the top of the hit list for both men.

Both team members have previously been affiliated, in different ways, with the American Enterprise Institute, a conservative think tank that proposes and lobbies for policy based on minimizing government intervention and maximizing the potential for businesses to choose their own unfettered course of action.

Eisenach, backed by the AEI, testified in a September, 2014 Senate Judiciary Committee hearing that “net neutrality regulation cannot be justified on grounds of enhancing consumer welfare or protecting the public interest,” because in his view it does neither.

He conceded that broadband ISPs “do posess a certain type of market power,” but that the “structure of the broadband market” is neither a monopoly nor “cozy duopoly,” and is “[not] a cause for concern.”

The market power ISPs do have, he said, “can create the incentive for firms to deny access to their platforms” but that because those incentives are not unique to broadband ISPs, there’s no cause for the FCC to regulate broadband by itself.

There is “nothing illegal or even immoral” about net neutrality advocates “seeking to advance their interests through the use of state power,” Eisenach said, but “the results can prove highly damaging.” He concluded that Title II classification — which the FCC ultimately adopted, giving the Commission more utility-like authority over broadband — would be terrible and would “harm the cause of Internet freedom worldwide.”

Jamison tackled net neutrality as recently as this summer, in a blog post on an American Enterprise Institute site.

He lambasted the court’s ruling upholding net neutrality, saying that “now that the DC Circuit Court of Appeals decided that it is okay to have economics-free regulations for the internet, leadership from Congress may be the only way we can achieve an economics-grounded” policy for internet management.

More: Did net neutrality kill broadband investment like Comcast, Verison, and AT&T said it would?

Jamison concluded that net neutrality regulations were only necessary if evidence of a broadband monopoly were to exist (and according to him, it doesn’t). “Net neutrality in the U.S. is backfiring,” he ended, without actually saying how.

“If the U.S. is to continue to be a place where consumers, entrepreneurs, and other enterprises can develop the next generation of information tecnologies, the country must move beyond net neutrality controversies,” he concluded. “This means letting the industry make business decisions and regulating only when monopolies take over.”

On the same site, in October, Jamison went straight for the metaphorical jugular and argued against the existence of the FCC itself. The post, called, “Do we need the FCC?” basically surmises that no, “we” don’t.

“Most of the original motivations for having an FCC have gone away,” Jamison wrote, and the new ones are all political and not compelling.

“Telecommunications network providers and USPs are rarely, if ever, monopolies,” he continued, although we here at Consumerist and the Department of Commerce have both found the opposite to be true.

Even in “instances where there are monopolies,” Jamison continued, “it would seem overkill to have an entire federal agency dedicated to ex ante regulation of their services.” In short, he says, the FCC exists only through federal inertia and because, by providing services like Lifeline, delivers profits to certain special interest groups.

Except for radio spectrum allocation, he concluded, everything the FCC does could be easily outsourced to the Department of Health and Human Services and the Federal Trade Commission.