Here’s What the GOP Should Do About Net Neutrality

Federal Communications Commission (FCC) Commissioner Ajit Pai testifies before the Senate Judiciary Committee's Privacy, Technology and the Law Subcommittee hearing on "Examining the Proposed FCC Privacy Rules" on Capitol Hill in Washington, DC, on May 11, 2016. / AFP / Nicholas Kamm (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
Photo credit: NICHOLAS KAMM AFP/Getty Images

The Affordable Care Act isn’t the only public policy legacy of the Obama era that could draw Republicans into a political minefield if they try to roll it back. While the stakes are hardly life or death, net neutrality likewise presents a tempting but perilous target for the incoming administration.

Obama’s Federal Communications Commission enshrined rules banning internet service providers like Comcast and Verizon from giving preferential treatment to some of the content flowing through their pipes. And the restrictions survived a court challenge last year. Now, Ajit Pai—a former Verizon lawyer and current FCC commissioner—is in line to lead the agency, after President Trump tapped him Monday for the role. Pai has made clear he’d like to dismantle the standard, and the FCC could move to begin that process immediately.

It won’t be easy. “Because it’s the FCC, it isn’t a simple reversal,” says R. David Edelman, who worked on the issue in both the Bush and Obama administrations, most recently at the National Economic Council. “There’s politics, the technical case, and the courts, none of which is a slam dunk. Then there’s the grand paradox: If all those stars align for a reversal, it’d create even more uncertainty for business.”

The politics alone are daunting enough: When the FCC was formulating the rule in 2014, it got swamped by nearly 4 million public comments, a record, with one analysis showing roughly 99% favored net neutrality enforcement. Rolling it back would mean siding with giant telecoms that remain deeply unpopular with consumers and whose power Trump directly challenged on the trail.

Then there’s the legal hurdle. Last summer, a federal court upheld the agency’s move to reclassify high-speed internet service as a utility, affirming the FCC’s authority to more strictly police broadband providers. Gutting net neutrality would force the agency to survive a legal challenge, justifying why the move wasn’t arbitrary and capricious. Congressional Republicans could pursue a legislative fix, but that would invite the same political blowback facing the agency and take time. Meanwhile, the FCC could just decline to pursue the sort of robust enforcement that would’ve been expected from the previous regime. That would likely leave some barebones protections in place. The strategy would satisfy nobody—but it may be the best, or even only, practicable one.

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