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The Legacy of Tom Wheeler’s FCC

The chairman brought net neutrality back from the dead, but Donald Trump may try to kill it off again

(Getty Images)
(Getty Images)

We all know the ancient internet proverb: “Don’t read the comments.” But as the chairman of the Federal Communications Commission, Tom Wheeler’s job demanded that he consider the 4 million messages people submitted to the agency to critique its net neutrality proposal in 2014. They weren’t exactly nice. “Don’t start another era of robber barons you assholes.” “Bro, fuck off with your FCC crap! Im gonna send Anonymous on your ASS!” “FUCK YOU WHEELER, IF I SEE YOUR LILY WHITE ASS IN THE STREETS WE WILL SEE WHO THE REAL AMERICAN MAN IS, YOU CORPORATE PUPPET SELL OUT FUCK.”

Two years later, Wheeler, who will step down from the chairman role when President-elect Donald Trump appoints a replacement, can likely walk the streets in peace. After surviving the internet’s collective wrath early in his tenure, Wheeler ended up pushing through a number of policies that pleased advocates of online freedom and privacy. The Verge dubbed him “Dragonslayer.” Tim Wu, the Columbia University law professor who first coined the term “net neutrality,” wrote that people had “misunderstood the character” of Wheeler. And the Electronic Frontier Foundation (EFF), a digital rights advocacy group, now says he helped both startups and everyday internet users. The man who was one of the first to be eviscerated by John Oliver ended up being a positive force for the internet in the eyes of many. “Chairman Wheeler was the one that really resurrected the agency’s authority and strengthened consumer protections in a lot of ways,” says Ernesto Falcon, legislative counsel for the EFF.

It’s a dramatic reversal in sentiment toward a former cable and telco industry lobbyist who was once entrenched in corporate interests (dude landed in both the Wireless Hall of Fame and the Cable Television Hall of Fame). But Wheeler ultimately won over a lot of skeptics with his handling of the debate over net neutrality, the idea that internet service providers should provide equal access to all types of online content.

To briefly recap a long, jargon-stuffed fight: A federal court effectively struck down the FCC’s net neutrality rules in early 2014, declaring that broadband companies were not subject to the agency’s mandates. In April of that year, the FCC put forth a new net neutrality proposal that would have allowed ISPs to enact paid “fast lanes” that prioritized certain types of content over others. Under pressure from consumer advocacy groups, angry internet users, and even President Obama, the FCC changed course and decided to reclassify both broadband and mobile wireless internet as telecommunications services that are subject to strict net neutrality rules. Appeals courts have so far upheld this reclassification. In effect, Wheeler pivoted from a hands-off approach that would evaluate bad actors on a case-by-case basis to a framework that treats the internet like a heavily regulated public utility.

“I think when he started at the beginning of the Open Internet Order process, he was thinking too much of Washington, D.C., and what the special interests in D.C. wanted,” Falcon says. “The public spoke out very fiercely in favor of the Open Internet Order being as strong as possible. The chairman responded to that.”

In addition to enacting stronger net neutrality rules, Wheeler put restrictions on how internet providers monetize user data, a big victory for privacy advocates. He also opened spectrum for upcoming 5G wireless networks and publicly opposed the merger of Comcast and Time Warner Cable (the FCC did approve tie-ups between Charter Communications and Time Warner Cable, though, as well as AT&T and DirecTV). But all of his plans did not become law — an initiative to force cable companies to adopt open standards for set-top boxes met pushback from some members of Congress and never earned full-throated support from the tech companies that would benefit from such a change, including Google and Apple.

The next FCC chairman, who will be appointed by Trump, may work to undo some of Wheeler’s policies. The president-elect himself has little technical knowledge about how the internet works, so his advisers are likely to shape his policies. According to Politico, Trump’s telecom transition team includes Jeffrey Eisenach, a paid Verizon consultant who opposed the FCC’s net neutrality rules.

The bureaucratic machinery to kill off net neutrality would be slow-moving — internet users could rain hellfire on the agency again during another round of public commenting on a new proposal. But the GOP-controlled Congress could enact laws to stall the implementation of the net neutrality rules. Legally ambiguous corporate policies like zero-rating, in which a mobile carrier excludes some content from counting against a user’s data allotment, could face fewer challenges. And because there are no explicitly stated punishments for violating net neutrality, a company that broke the rules would face the wrath of … the Republican-controlled FCC.

In theory, the FCC is supposed to act as an independent agency outside the bounds of presidential control. But you would be hard-pressed today to name an American institution that hasn’t been deeply politicized; the agency’s net neutrality rules were announced after a concerted, secret effort by the Obama White House to advocate for strong regulation of internet providers. With President Trump’s thumb on the scale, balance is likely to shift back away from tight control. “We are definitely very concerned that the intention is to put in a chairman that will immediately try to dismantle the Open Internet Order,” says Falcon. “If the rhetoric is actually the policy at the end of the day, we’re going to be in for a whole host of fights.”

Wheeler himself seems well aware that his work could ultimately be undone. “I think it’s an important thing to remember that taking a fast, fair, and open internet away from the public and away from those who use it to offer innovative new services to the public,” he said Thursday, “would be a real mistake.”