Analysis: The future of net neutrality in Trump's America

WASHINGTON - Now that President Donald Trump has signed legislation repealing landmark federal privacy protections for Internet users, many in Washington are trying to decipher what the move could mean for net neutrality. That's the principle, recently enshrined in a separate federal policy, that says all websites should be treated equally by Internet providers. Approved by Democrats at the Federal Communications Commission in 2015, the rules say companies such as Verizon and AT&T cannot block, slow down or charge extra fees to a website owner just so that it can be displayed on consumers' screens.

With business-minded Republicans controlling both the executive and legislative branches, many analysts widely expect the government's net neutrality rules to be rolled back, too - much like the privacy rules this week. But will net neutrality really go away, and if so, how? Here's everything we currently know, with major implications for the future of the Web.

The battle lines are clearly drawn: Advocates support the net neutrality rules as a vital consumer protection, but the regulation is hotly contested by critics who argue that Internet service providers (ISPs), such as Verizon and AT&T, don't need pre-emptive government rules and should be free to find new ways to make money.

White House press secretary Sean Spicer, correctly said Friday that the FCC's net neutrality rules "opened [the] door," to its privacy regulations - and that both are an example of the kind of regulation President Trump has promised to fight and undo.

By drawing a connection between the privacy rules and net neutrality, Spicer's remarks prompted some in the media to conclude that Trump was putting net neutrality next on the chopping block. But there isn't much Trump can do himself to roll back the policy. He can criticize the regulations in an attempt to set the agenda. He can sign legislation. He could try to pressure the FCC, as Republicans not long ago accused President Barack Obama of doing. But aside from that, Trump's role in repealing the rules is likely to be small; the real center of gravity lies outside the White House, policy experts say.

"Because it is an independent agency, the president's direct control of the FCC is extremely limited," said John Bergmayer, a senior staff attorney at the consumer group Public Knowledge.

Congress could intervene on net neutrality by writing a bill that repeals and replaces the FCC policy. But a legislative deal does not appear imminent. Republicans, lacking a filibuster-proof majority in the Senate, need some Democratic support for any such bill. And Democrats have declined to play ball unless the legislation preserves the FCC's ability to regulate Internet providers like legacy telephone companies, something Republicans have strongly resisted.

The impasse has high-ranking Republicans such as Rep. Marsha Blackburn, Tenn., and Sen. John Thune, S.D. - whose committees oversee the FCC - suggesting that the agency should make the first move to repeal the net neutrality rules.

"I don't think it hurts for the FCC to move [first] because it puts additional pressure on Congress," Thune told reporters last month. "I think it's going to be hard to get Democrats on this committee, or Democrats generally, unless the FCC starts something."

But despite his own outspoken criticism of the rules, FCC Chairman Ajit Pai does not seem eager to launch a process at his agency rolling them back. Asked repeatedly by reporters when and whether he intends to open a rulemaking to undo his predecessor's net neutrality regulation, Pai has consistently demurred. Though he is considering the move, Pai has said he has no timeline that he can offer. A spokesman for the FCC declined to comment.

A move by the FCC to roll back the net neutrality policy could yield a kind of policy compromise, according to Hal Singer, an economist at George Washington University's Institute of Public Policy. Singer has proposed setting up guidelines for Internet providers, not formal bans on business practices, that could then be invoked on a case-by-case basis by consumers or other businesses who feel they've been harmed by a broadband company.

But a rulemaking process would likely take months and turn into a major spectacle. Rulemakings move slowly by design, and allow for many weeks of outside feedback, meaning that activists and protesters would have time to flood the comment system much as they did in 2014. Given how highly public the last go-round was, Pai would likely need to proceed with a rulemaking very carefully.

"Repealing the rules without a replacement is going to cause tremendous blowback," said Singer. "At a bare minimum, they need to articulate a glidepath to a replacement ... Right or wrong, there is little faith that ISPs will police themselves."

The mutual reluctance by Congress and the FCC to make the first move amounts to a game of political hot potato - which is why some experts believe the fate of net neutrality will be decided in the courts.

Despite a federal court ruling upholding the FCC rules last summer, industry advocates are still pushing to have the regulations overturned by a fresh judicial hearing.

If the U.S. Court of Appeals for the D.C. Circuit agrees to rehear the net neutrality case - a decision that could be announced this spring - Internet providers will have another shot at knocking down the rules. Pai could make things even easier for the industry by not defending the suit, something he has already done in at least one separate case involving low-cost broadband access. If the court rules against the FCC, the regulations are as good as dead.

Should the D.C. Circuit refuse to grant a rehearing and instead allows the net neutrality regulations to stand, industry proponents are prepared to appeal their case to the Supreme Court.

"All eyes are on Pai to make a first move, but I promise he will wait for the Supreme Court outcome - which no one has admitted remains in play," said Daniel Berninger, a network engineer and entrepreneur who is a part of the ongoing suit at the D.C. Circuit.

Any judicial outcome that negatively affects the FCC's rules is likely to have big implications for Congress, policy analysts say. Democrats who worry about a court invalidating the regulations may finally feel compelled to come to the negotiating table with Republicans on a net neutrality bill. It's possible that in such a political environment, ideas such as Singer's may gain prominence.

At this point, you may wonder why Trump doesn't simply issue an executive order overturning the FCC's net neutrality rules. The answer is that executive orders aren't likely to have much effect, according to industry officials and consumer advocates.

"I have never heard anyone suggest that Trump could roll back [the net neutrality rules] with an executive order," said Matthew Polka, president of the American Cable Association. Executive orders, said Polka, apply only to the executive branch and not to independent agencies such as the FCC.

In interviews, three other policy analysts all agreed that a Trump executive order would have limited effect in this area.

So that's where net neutrality stands today, as best as we understand it.