Appointees Jeffrey Eisenach and Mark Jamison have openly opposed
legislation that assures equal access to high-performance internet

Protesters hold a rally at the Federal Communications Commission in Washington DC to support net neutrality on 15 May 2014

By Geof Wheelwright

Legislation that assures equal access to high-performance internet – one of the signature achievements of Obama’s administration – could be reversed under President-elect Trump after he appointed two opponents of “net neutrality” to the US communications regulator team.

Jeffrey Eisenach and Mark Jamison have been vocal in their opposition to the policy of net neutrality, which prevents large internet companies from creating fast lanes for high-paying customers. They are both associated with the American Enterprise Institute, a conservative thinktank based in Washington DC which has previously campaigned against net neutrality.

While Trump himself hasn’t said a lot about net neutrality, Eisenach testified before the judiciary committee of the US Senate in 2014, saying the policy used government regulation to unnecessarily advantage small companies and had little to do with protecting consumers.
“Net neutrality regulation cannot be justified on grounds of enhancing consumer welfare or protecting the public interest,” he said. “The potential costs of net neutrality regulation are both sweeping and severe, and extend far beyond a simple transfer of wealth from one group to another. Legitimate policy concerns about the potential use of market power to disadvantage rivals or harm consumers can best be addressed through existing antitrust and consumer protection laws and regulations.”

Mark Jamison took the argument one step further. In an October 2016 opinion piece for Tech Policy Daily, he asked provocatively whether or not the FCC is needed any more.

“Most of the original motivations for having an FCC have gone away. Telecommunications network providers and ISPs are rarely, if ever, monopolies,” he wrote. “If there are instances where there are monopolies, it would seem overkill to have an entire federal agency dedicated to ex ante regulation of their services. A well-functioning Federal Trade Commission (FTC), in conjunction with state authorities, can handle consumer protection and anticompetitive conduct issues.”

Milton Mueller, professor at the Georgia Institute of Technology School of Public Policy, and a principal of the Internet Governance Project, suggests that the kinds of sweeping changes that Trumps advisers seem to be encouraging could not happen quickly or without public comment.

“If the new FCC makes significant changes in regulations there will be an opportunity for public comment, as there always is as per the Administrative Procedures Act,” he said. “In principle, the public has the same type of input it had before, it’s just that the current commissioners will be less likely to lend a sympathetic ear to net neutrality advocates than before.”

Mueller also suggests that even if the current net neutrality rules are scrapped or overhauled, its impact might not be that dramatic. “I don’t see the curbing or elimination of current net neutrality rules as affecting broad access to reliable high-speed internet that much,” he said. “It’s pricing and competition that matter the most. I don’t think the major ISPs are all that keen to engage in major acts of discrimination against specific content, applications and services."

But Anne Jellema, CEO of the World Wide Web Foundation, whose founding director is web inventor Sir Tim Berners-Lee, is not so sure. She warns that her organization will be keeping a close eye on the new administration’s actions around net neutrality.

“Today’s appointments certainly don’t look like good news for net neutrality,” she said. “But President-elect Trump has promised to be a ‘president for all Americans’. If he’s serious about this promise, we trust the transition team will pay heed to the over three million comments submitted just last year by Americans of all political stripes calling for strong net neutrality, and will respect the recent decision by a federal appeals court to uphold the FCC’s Open Internet order.

Jellema said that strong net neutrality rules help to secure budding entrepreneurs the same opportunities as Amazon or Facebook, as well as making sure internet providers had the same incentive to serve people in rural areas, and not just more lucrative audiences in cities.

“The open internet has played an important role in driving economic progress in the US, and can continue to do so in the years ahead – but only if fairness is hardwired into the rules of the game,” she added. “The new administration has a key role in setting an equitable internet policy for all Americans and signaling that they will continue the US’s role as a global guardian of an open and free web.”

Campaigns for and against net neutrality regulations have been waged since 2005. Regulationwas finally adopted last year after the FCC ruled that broadband internet access (both at home and wirelessly) would be classified as a “common carrier” under specific sections of the 1934 Communications Act and the 1996 Telecommunications Act.

Obama wrote of the 2015 FCC decision: “Today’s FCC decision will protect innovation and create a level playing field for the next generation of entrepreneurs,” he said, thanking the four million people who wrote to the FCC in support of net neutrality.