The Open Internet is an early test for President Trump

President-elect Donald Trump is less than two weeks from taking the oath of office, and one pressing question still looms. Will Trump be a laissez-faire Republican, or will he emerge as a “trust-buster” in the mold of Teddy Roosevelt? 

Trump’s approach to the The Open Internet will be an early test, and a more reliable one than the personnel choices that the President-elect will make for key positions affecting the telecom, Internet and technology spaces.

“You loved me as a loser, but now you worry that I just might win.” So said prophetic bard Leonard Cohen, who passed away just one day after the U.S. election. Loved by some as a dark-horse outsider with a near-one hundred percent chance of losing, Donald Trump has won.

Who should worry?

Should that include the rich and the powerful?

We often think of the Republican Party as friendly to big corporations and as willing to tolerate the accumulation of corporate power without placing limits on that power. That was not always the case. 

{mosads}The Sherman Act, to this day the main antitrust law, owes its name to the Ohio Republican Senator who sponsored it in 1888. Teddy Roosevelt made his name as the “trust-buster” by suing over 40 companies including John D. Rockefeller’s Standard Oil for antitrust violations. And the 1936 platform of the Republican Party called monopolies “indefensible and intolerable.” The reason was simple: for a large part of the nation’s history, the conservative views of small government and state rights have been accompanied by mistrust of corporate power and vigorous antitrust enforcement to protect free markets.

President Trump is no friend of elites or corporate power either. He has proposed reviving the Glass-Steagall Act’s limits on commercial banks doing insurance and investment banking. He has sharply criticized the elite of big media. He has announced his opposition to the proposed merger of AT&T and Time Warner, explaining “it’s too much concentration of power in the hands of too few.” 

Trump is not beholden to contributions from large corporations. His own business experience is that of a swashbuckler individual, not that of a corporate insider. Just as important, his mandate appears to stem from the belief of the voters that he is someone strong, independent and determined enough to take on powerful interests. And not to forget: it was scrappy online sites such as Breitbart and the Drudge Report that contributed significantly to his success.

All of this would appear to make the President sympathetic to the notions of the Open Internet and net neutrality.

What do the Open Internet rules do?

They limit the behavior of the powerful gatekeepers of Internet access—the large cable and telephone companies on which we depend for our Internet. The Open Internet rules prevent these gatekeepers from discriminating in favor of their own affiliates and at the expense of independent online companies.

Internet access providers are prohibited from blocking or throttling the Internet content of consumers’ choice or from exacting “pay-to-play” tolls from online companies.

There seems to be a natural affinity between these limits and the iconoclastic President Trump. They allow the individual online entrepreneur a shot at making it, at reaching the people notwithstanding the corporate behemoth guarding the gate.

Without these rules, after all, an Internet access provider would have been able to favor an affiliated news site, and throttle (or shut down) access to that site’s competitors. The messages of Donald Trump might not have made it to the voters, let alone propelled him to victory.

It is true that the Open Internet rules are opposed by many mainstream Republicans. And it is also true that a 2014 tweet from Donald Trump criticizes “net neutrality.” But the criticism was only due to a fear that the Obama administration would create a “fairness doctrine,” which would further entrench the media elite by targeting “conservative media.”

In fact, the opposite happened: the Open Internet rules subsequently enacted by the FCC allowed conservative online voices to flourish instead of targeting them.

So what will come of net neutrality under the new Administration?

This question will not necessarily hinge on the President-elect’s choice (not yet made) of an FCC Chairman. Some think that the opposition of the two Republican Commissioners now sitting on the Commission is tantamount to a death warrant for the Open Internet rules. This need not be so.

The opposition of Commissioners Pai and O’Reilly has been strong, principled and eloquent. But principled does not mean unchangeable when the evidence warrants. In a proceeding to revisit the Open Internet rules, the two Commissioners will have the benefit of more than one year of the rules being effective. There can be no doubt they will consider this new evidence with a fresh eye and an open mind. And the policy input from the White House will certainly be relevant, too.

Will the rules be modified?

Most likely, whether or not Congress acts. But will they be abolished? The answer will tell us to what extent the new President is going to be the swashbuckler whom so many millions of voters have loved, willing to take on the powerful. Leonard Cohen sang: “Now you can say that I’ve grown bitter but of this you may be sure, the rich have got their channels in the bedrooms of the poor.”

Will the new President leave these established channels undisturbed, or will he let the people choose their content instead?

Pantelis Michalopoulos is an attorney and a partner in the Washington, D.C. office of the law firm Steptoe and Johnson, where he heads the telecom, Internet and media group. He has represented the Internet industry in the net neutrality case in Washington, D.C. federal district court.  

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