Net Neutrality’s Future in Crosshairs as FCC Chief Departs

  • Agency set for a 2-1 Republican majority after Democratic era
  • Republicans want to ‘fire up weed whacker’ on FCC rules

Federal Communications Commission Chairman Tom Wheeler’s departure next month leaves in doubt his signature initiative: the net neutrality rule that’s reviled by cable and telephone companies.

The groundbreaking set of regulations, passed in 2015 by Wheeler and his Democratic majority, forbids internet service providers from blocking or slowing rivals’ content. Companies such as AT&T Inc., Verizon Communications Inc. and the cable industry led by Comcast Corp. sued to block the rule, saying it gave the agency too much authority.

They lost that case but some Republicans have vowed to take up the cause and overturn the regulation when they have control of Congress, the White House and the FCC.

Wheeler, who announced Thursday that he will leave the commission on Jan. 20, when Donald Trump is scheduled to be sworn in, said it may not be so easy. Even though the Republicans will gain a 2-1 FCC majority, federal law requires that they show good reasons if they are to change the rule, Wheeler said at a news conference.

"There’ll be a burden to demonstrate what has changed so drastically” since the rule was passed in 2015, Wheeler said. "Then the question of course is ultimately going to be resolved by the courts" which have backed the agency’s approach.

Congressional Action

Congress could supersede an FCC rule, but legislation that guts the rule could be blocked by Senate Democrats who support net neutrality.

Earlier attempts to write a replacement “all failed to muster sufficient support in the face of a certain veto by President Obama. That’s no longer a factor,” Kevin Werbach, a professor at the University of Pennsylvania’s Wharton School, wrote in an essay posted on medium.com. “As congressional reversals of signature Democratic policies go, this one would be an easy lift.”

Congress likely will begin examining ways to revoke net neutrality early in 2017, Representative Marsha Blackburn, a Tennessee Republican, said in a speech earlier this month.

“Republicans must seize the opportunity before them to roll back Chairman Wheeler’s overreach," Blackburn said. She called for both parties to work together.

Senator Ron Johnson, a Wisconsin Republican who sits on the commerce committee that oversees the FCC, said, "I look forward to working with the new FCC on rolling back harmful, partisan regulations that choke investment and innovation in the communications sector.”

The regulation was backed by President Barack Obama. Trump hasn’t been explicit about his view of the rule.

In a 2014 tweet, Trump called net neutrality, then under consideration, an "attack on the internet" that would serve to "target conservative media." He named critics of net neutrality to his transition team, including one who has called the regulation “crony capitalism” designed to benefit so-called edge companies -- a category that includes companies such as Alphabet Inc.’s Google and Netflix Inc.

The rule is supported by Google, Netflix, Twitter Inc., Yelp Inc. and other web companies that need to go through internet service providers in order to reach customers.

Wheeler’s departure will leave Trump to choose a Republican FCC member and a Democrat, who both must be confirmed by the Senate.

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“Chairman Wheeler has served this country with distinction,” departing Senate Minority Leader Harry Reid said.

The Nevada Democrat, who is retiring after 30 years in office, urged Obama to re-nominate currently serving FCC Democrat Jessica Rosenworcel next month when a new Congress is seated. The Senate didn’t confirm Rosenworcel before adjourning last week and she’ll need to leave office when this Congress adjourns.

Wheeler’s announcement “helps the incoming administration transition the FCC to reflect the outcome of the November election,” Senator John Thune, the South Dakota Republican who is chairman of the Commerce Committee that oversees the FCC, said in an e-mailed statement.

Other rules passed by Wheeler’s FCC are also targets for Republicans. They include privacy rules imposing obligations on carriers such as AT&T and Verizon Communications and ownership rules that restrict TV-station combinations by companies such as Sinclair Broadcast Group Inc.

Wheeler’s been in office since 2013, and Republicans are eager to begin pruning rules he passed without their votes, such as the net neutrality measure. “We need to fire up the weed whacker,” Ajit Pai, the agency’s senior Republican who may become acting chairman upon Wheeler’s departure, said in a Dec. 7 speech.

Activist Agenda

A former venture capitalist and lobbyist for the cable and wireless industries, Wheeler surprised some analysts with an activist agenda opposed by his former employers, highlighted by the net neutrality rule that has survived a court challenge by the cable and telephone industries.

Wheeler proposed but couldn’t pass rules regulating rates for high-speed business lines, and tried but didn’t succeed in wresting control of the set-top box market from cable providers led by Comcast.

Wheeler’s FCC helped to kill Comcast’s proposed purchase of Time Warner Cable Inc. Along with antitrust regulators he signaled to Sprint Corp. it couldn’t buy T-Mobile US Inc., heading off one possible deal. It wasn’t all “no” -- his FCC approved AT&T’s purchase of satellite-TV provider DirecTV, and Charter Communications Inc.’s purchase of Time Warner Cable.

Partisan Balance

It’s unclear whether the agency will take up AT&T’s proposed $85.4 billion purchase of HBO and CNN owner Time Warner Inc. The companies are assessing whether to retain the FCC licenses that would give the agency jurisdiction over the deal, AT&T Chief Executive Officer Randall Stephenson said at a congressional hearing on Dec. 7.

Wheeler, 70, followed the template of former Chairman Kevin Martin, a Republican, who left on Obama’s inauguration day although he had more than two years remaining in his term.

Wheeler could have chosen to remain a commissioner, without the presidential designation as chairman, until his term runs out in 2018. That would have created a temporary 2-2 tie, lasting only until the Senate confirmed a successor for another Democrat who is leaving the agency.

The FCC at full strength has five commissioners, with a maximum of three from any political party, and the chairman selected by whoever is president.

(Updates with Thune statement in 17th paragraph. An earlier version misstated the number of FCC nominations for Trump.)
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