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Net Neutrality Rollback Under Trump Will Face Hurdles

(Rob Kunzig/Morning Consult)

As Republicans prepare to take over the Federal Communications Commission next year, don’t expect them to make a quick, clean break with the agency’s 2015 net neutrality rule.

Two commission officials on Wednesday told Morning Consult that procedural hurdles and related programs may make scrapping the Open Internet order more complicated than GOP rhetoric suggests.

While Commissioners Ajit Pai and Michael O’Rielly — the two Republican members of the FCC — have stated their intention to roll back the recently expanded Title II authority underpinning net neutrality, procedural roadblocks could delay that effort, the two FCC officials said. The commission is still required to issue a proposed rule, which typically takes months to craft, and the comment period spans about two months.

Political precedent will weigh in. Pai will likely be acting chairman starting on Jan. 20, and he will have to balance any desire to move quickly on Title II with some deference to the administration’s pick for chairman. That nomination could take months to finalize.

Perhaps most importantly, the two commission officials separately noted that a rule to roll back net neutrality could face scrutiny in the courts. A federal appeals court upheld the net neutrality rule in June, and the decision relied on evidence of how the broadband market changed over the previous 10 years, making it difficult for Republicans to argue for a rollback now.

“Just a year or two after having gone through this entire fact-driven, 400-page justification of why broadband is a Title II service and why net neutrality is important, to turn around two years later and say, ‘Actually, we were wrong about that’ — that’s a whole other area of legal risk,” one FCC official said.

The incoming Republican-led FCC would also need to consider the potential fallout of a Title II rollback on other programs and authorities.

For example, commission officials and analysts agreed that a rollback would likely retire privacy standards that the FCC adopted for internet service providers in October. Once the commission determines that ISPs don’t qualify as common carriers, it follows that the FCC lacks the authority to regulate their privacy policies.

The commission’s Lifeline broadband subsidy program for low-income customers may also be under threat. Harold Feld, senior vice president at the progressive nonprofit Public Knowledge, said in an interview Wednesday that the funding mechanism for those subsidies are probably dependent on Title II authority.

That assertion is in dispute. Berin Szoka, president of the free-market group TechFreedom, said in an interview Wednesday that reworking Title II shouldn’t change the commission’s authority to provide broadband subsidies. A federal court ruled in May 2014 that the FCC has the power to offer those subsidies without Title II.

The two FCC officials tentatively agreed with Szoka’s characterization, with one saying broadband subsidies are likely safe unless Republican commissioners go out of their way to dismantle them.

Consumer complaints also could be affected by a Title II change since broadband customers lodge complaints about ISPs with the FCC. Reversing the net neutrality rule could throw that authority back to the Federal Trade Commission.

But Feld and the FCC officials noted that an August federal court decision could limit the FTC’s ability to enforce consumer protections for broadband providers that also provide phone services. Rolling back Title II could therefore create a gap in consumer broadband protections that the FTC would be unable to bridge.