A quick FCC shift could stall, but not kill broadband rules

22 December 2016 by Steve Blum
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It’s not a question of when the incoming Trump administration will roll back common carrier status for Internet service. It’s a question of if it can be done. It’s a near certainty that the new Federal Communications Junta Commission will try to reclassify broadband back to being an information service. The common carrier label is the keystone of most major FCC decisions in the last couple of years. Remove it and a tall stack of regulations tumbles.

But federal courts could block any rapid move to reclassify broadband back to its former status as an information, rather than telecommunications, service. As an article by Brendon Bordelon in Morning Consult points out…

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.

Federal courts traditionally defer to the expertise of specialist federal agencies in making these sorts of decisions, but there’s a limit. If an agency’s decision seems to be arbitrary or capricious, judges will step in. A rapid reversal on political, rather than technocratic, grounds will spark that kind of scrutiny.

A lengthy and detailed FCC proceeding would be a good defence against court intervention, but it could also invite a public backlash, John Oliver-style that might cause a populist president to reconsider. Or public opinion could go the other way, and accelerate the rollback of common carrier rules for broadband. How that plays out depends on how the issue is framed. If the marquee issue is AT&T’s DirecTv zero rating plan, it’ll be “free TV” versus a geeky microeconomic argument about competitive markets. Guess which one will win?