How Trump’s war with the news media could impact net neutrality

By Kenneth Merrill

In a stunning attack on the nation’s news media, the President of the United States took to Twitter on Friday to write, “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”. Echoing the well-worn rhetorical agitprop of tyrants past and present, Trump’s tweet was viewed by many, including those in his own party, as an attempt to divert attention from the chaos enveloping his new administration by eroding trust in a fundamental pillar of democracy. But, viewed through the narrower prism of Internet and telecommunications policy, Trump’s latest salvo aimed at the news media sheds light on the complex and increasingly interconnected interests involved in the administration’s efforts to roll back regulations like net neutrality.

Passed in 2015, the Federal Communications Commission’s (FCC) net neutrality provisions were designed to protect the principle that all data should be treated equally as it moves across the Internet. Advocates of net neutrality, including consumer rights groups and most of Silicon Valley, argue that it protects users and encourages innovation in the content space by prohibiting large telecom providers (e.g. AT&T, Verizon, Comcast, etc.) from throttling traffic (either by slowing down data from competitors or creating “fast lanes” for their own approved content). Critics, including Trump’s newly appointed FCC Chairman (and former Verizon lawyer) Ajit Pai, say the net neutrality rules discourage much-needed competition in the telecom infrastructure industry.

Of course, the lack of competition in the telecom space is hardly a new phenomenon — the concentration of ownership in the industry is a problem that predates the FCC’s net neutrality provisions by at least thirty years. Moreover, the few companies that have come to dominate in this exclusive ecosystem have, in large part, done so through the acquisition of content providers, including several of the mainstream news media outlets Trump so abhors. As such, debates over whether or not to keep net neutrality are not as simple as they may seem.

To this point, Klint Finley of Wired explains that several of the largest telecom providers will be required to adhere to the net neutrality rules, per the terms of their merger agreements, regardless of any changes the new Trump-controlled FCC may make. Comcast is contractually obligated to honor net neutrality until 2018 following its merger with NBC Universal (parent company of the “failing” @NBCNews), while Charter Communications must adhere to the provisions until 2023 after its merger with Time-Warner (parent company of the “failing” @CNN).

Criticizing the most recent media mega-merger in October, then-candidate Trump called AT&T’s proposed $85 billion acquisition of Time-Warner a deal that would place “too much concentration of power in the hands of too few.” But in prefacing his comments by calling out CNN in particular as a key part of “the power structure I’m fighting,” the president seemed more concerned with punishing his perceived enemies in the press than ensuring fair competition in the industry. And while most expect the AT&T/Time-Warner deal to be approved, some industry experts have expressed concern that the FCC’s net neutrality regulations could remain in place only to become a political cudgel used by the president to inflict pain on his critics in the press. As Harold Feld of the digital rights group Public Knowledge explains to Finley in the aforementioned Wired story:

“he could appoint commissioners who will keep the net neutrality rules on the books, but not enforce them. Then if MSNBC were to offend him he could launch an investigation into its parent company, Comcast, over net neutrality. If the administration approved the AT&T/Time-Warner deal, it would have a similar bludgeon to use against CNN. In other words, we could end up with perhaps the worst of both worlds: a highly consolidated media industry, coupled with a regulatory body that selectively enforces rules for political reasons.”

But if this sort of Machiavellian gambit is the worst-case scenario, the likely alternatives are not much better. For a self-described pro-business president who, during the campaign, promised to cut regulations by as much as “75 percent, maybe more!“, scrapping net neutrality altogether remains the most likely outcome. Others suggest some elements of net neutrality could gain bi-partisan support in Congress, although any legislation would almost certainly roll back the so-called Title II provision reclassifying broadband Internet service as a “common carrier,” on par with other utilities like telephone service. It is also likely that limits on “zero rating,” in which Internet/mobile network operators (like AT&T, Verizon, and T-mobile) provide free data to customers for certain preferred content (often their own content or through partnerships with third party content providers), will be significantly scaled back under the new FCC.

Perhaps the only silver lining for advocates of net neutrality is that any changes to the provisions will be met with the forceful and increasingly influential dissenting voice of Silicon Valley. The overwhelming majority of large content providers and online platforms like Google, Facebook, and Twitter strongly support net neutrality. And in the wake of Trump’s controversial travel ban, Apple’s fight with the FBI over encryption, the SOPA and PIPA protests, and the industry’s successful lobbying effort against a 2014 FCC proposal calling for the creation of “fast lanes,” it is clear Silicon Valley is ready and able to defend its interests in Washington.

How this all plays out remains to be seen. But it seems clear that in an environment of increasing ownership concentration, both among Internet service providers and online content platforms (recall that European lawmakers continue to pursue an antitrust case against Google), the consequences involved in reversing net neutrality will be far-reaching and difficult to contain.