Sam Gustin

Network neutrality can’t be torpedoed overnight. The Federal Communications Commission rules prohibiting online fast lanes and discriminatory broadband practices are now US policy, and they can’t be dismantled at the whim of an authoritarian president. But a Trump-backed, Republican-led FCC could simply stop enforcing the net neutrality policy, rendering it essentially toothless. That could unleash the nation’s largest cable and phone companies, including Comcast, AT&T and Verizon, to expand controversial practices like “zero-rating” that are designed to circumvent net neutrality.

In order to fully kill the FCC’s net neutrality protections, President-elect Trump will most likely have to work with GOP lawmakers like Senate Commerce Committee Chairman John Thune (R-SD) to re-write the Communications Act to strip out the FCC’s Title II authority regulating the nation’s largest broadband companies as “common carriers.” Or the Republican-led Congress could simply remove funding for the FCC’s ability to enforce the net neutrality policy through language in the next must-pass budget bill, which would certainly be signed by President-elect Trump.

AT&T’s proposed $85 billion buyout of Time Warner could make a mockery of US open Internet protections if the combined company decides to exploit a loophole in federal regulations in order to favor its own content at the expense of rivals. That was the blunt warning issued by Sen Ron Wyden (D-OR) in a letter to Federal Communications Commission Chairman Tom Wheeler.

Sen Wyden is particularly concerned that AT&T could use the controversial practice of “zero-rating” to favor Time Warner programming, thereby undermining the FCC’s policy protecting network neutrality. Zero-rating refers to a variety of practices that broadband companies use to exempt certain Internet content and services from data caps, effectively favoring those services by providing consumers with an economic rationale to use them instead of rival offerings. “I am deeply concerned that if AT&T acquires Time Warner's content, the new mega-company will have incentives to prioritize its own content over content created by small business, independent artists or by its rivals,” Sen Wyden wrote.

It’s the $85 billion question. Will the Federal Communications Commission have jurisdiction over AT&T’s blockbuster $85 billion buyout of entertainment giant Time Warner? The reason why this is important is that the FCC is likely to take a more skeptical view of the deal than the Justice Dept. In mergers like these, the Justice Dept.’s job is to ensure that the deal doesn’t run afoul of antitrust laws. The FCC, by contrast, has a more rigorous responsibility: To ensure that the deal serves the public interest. That’s why AT&T wants to avoid FCC scrutiny in this case.

As a technical matter, it would be very difficult for AT&T to absorb CNN and HBO without the broadcast functionality that these licenses provide, according to John Gasparini, policy fellow at DC-based consumer advocacy group Public Knowledge. “It appears that AT&T and DirecTV do not currently have sufficient satellite licenses to forgo acquiring the Time Warner licenses without impacting the operations of big-name properties like CNN and HBO,” Gasparini said. “As a result, it’s more than likely that AT&T and Time Warner will need to secure FCC approval before the deal goes through.” “The only way AT&T could avoid FCC scrutiny is if they deliberately structure this deal in a convoluted way to avoid a transfer of these licenses and thus FCC review,” Gasparini added.

So what happened to Google Fiber? For one thing, building out a brand new wireline communications network from scratch is costly, difficult work. Permits must be obtained, partnerships with local governments must be struck, and obstacles thrown up by incumbent Internet service providers and their allies in statehouses must be overcome. Then there’s the small matter of actually building out the network—laying fiber in the ground, or stringing fiber on utility poles—which is an expensive, labor-intensive, and time-consuming endeavor. "I suspect the sheer economics of broad scale access deployments finally became too much for them," said Jan Dawson, an analyst with Jackdaw Research. "Ultimately, most of the reasons Google got into this in the first place have either been achieved or been demonstrated to be unrealistic."

Then there’s the changing nature of Alphabet itself. Alphabet is under increasing pressure from Wall Street to rein in the costs associated with its more fantastical moonshots. One thing seems clear: Alphabet's decision to halt its fiber expansion increases the urgency for cities and municipalities around the country to build community broadband networks if they want faster, cheaper alternatives to the dominant internet service providers. It appears increasingly likely that Google Fiber won’t save you, people, so maybe it’s time to take matters into your own hands.

Evaluating Hillary Clinton and Donald Trump on technology and telecommunication policy issues poses an interesting challenge. Clinton has laid out detailed proposals on issues ranging from network neutrality to expanding broadband access to increasing broadband competition. Trump has not, and there is very little material in the public record with which to evaluate his positions. On the issues where Trump has taken a public position, his statements indicate a troubling ignorance of technical facts, and an alarming willingness to peddle blatant falsehoods for political gain.

Clinton has presented a detailed set of policy proposals aimed at ensuring Internet openness and reducing the digital divide by encouraging broadband deployment, including at the community level, and increasing competition in markets often dominated by a dwindling number of corporate giants. Trump has largely ignored issues like the digital divide and broadband competition, and his erroneous statements on issues like net neutrality and the Internet governance transition suggest that he has little grasp of, or interest in, tech and telecom policy.

The US government’s plan to relinquish stewardship of key Internet governance functions is under attack from Republicans who are using blatant falsehoods and fear-mongering to obstruct the historic transfer, according to Internet policy experts. Led by Sen Ted Cruz (R-TX), Republicans are working to sabotage the US government’s long-standing plan to transfer oversight of core Internet technical functions, including management of the Domain Name System (DNS), to a nonprofit group of global stakeholders. Sen Cruz and his GOP allies claim that the Oct 1 transfer would undermine global Internet freedom, imperil US national security, and violate federal law—and they’ve pledged to use the federal budget process to block the move. Sen Cruz has even gone so far as to threaten federal employees working on the transition with prosecution and imprisonment. “The Obama administration's proposal to give away control of the Internet poses a significant threat to our freedom,” Sen Cruz said, warning darkly of “the significant, irreparable damage this proposed Internet giveaway could wreak not only on our nation but on free speech across the world.”

Internet policy experts say Sen Cruz’s attempt to delay the transition, which is largely clerical in nature and unlikely to even be noticed by the world’s 3.2 billion internet users, poses serious risks to global Internet governance and could embolden repressive regimes around the world to undermine Internet freedom and seek greater government-led or intergovernmental control of the Internet. "There’s no legitimate way for him to get to that conclusion,” Milton Mueller, a professor at the Georgia Institute of Technology School of Public Policy and a leading authority on global internet governance, told PolitiFact, which rated Sen Cruz’s claims as FALSE. “What he’s doing is fear-mongering and trying to create a bogeyman, which is the United Nations.”

House Communications Subcommittee Ranking Member Anna Eshoo (D-CA) introduced federal legislation to help communities across the country develop locally-controlled communications networks, setting up a fierce battle with anti-municipal broadband Republican Reps in Congress. The Community Broadband Act of 2016 is designed to accompany a similar Senate measure backed by Sens Cory Booker (D-NJ) and Ron Wyden (D-OR), along with several of their colleagues. Ranking Member Eshoo’s legislation comes one month after a federal court ruled that the Federal Communications Commission lacks the authority to preempt Comcast and AT&T-backed state laws that pose barriers to community broadband development.

“I’m disappointed that a recent court ruling blocked the FCC’s efforts to allow local communities to decide for themselves how best to ensure that their residents have broadband access,” Rep Eshoo said. “This legislation clears the way for local communities to make their own decisions instead of powerful special interests in state capitals.” Rep Eshoo’s bill faces steep odds of success as long as Republicans control Congress, but it nevertheless represents an important development in the nationwide movement to help local communities build their own broadband networks in order to lower prices, boost speeds, and increase competition. Rep Eshoo’s legislation would block any state law that prohibits a city, municipality or public utility from providing “advanced telecommunications capability.” Nearly two dozen states have passed such laws, often at the behest of the nation’s largest cable and phone companies, including Comcast, Verizon, and AT&T, as my colleague Jason Koebler has documented.

The nation’s largest cable and telecommunication industry trade groups on July 29 asked a federal court for a rare “en banc” review of June’s decision upholding US rules protecting network neutrality, the principle that all content on the Internet should be equally accessible to consumers. “The likelihood that the full DC Circuit would agree to rehear the case, much less reverse the panel’s decision, is extremely remote,” Andrew Schwartzman, Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation, wrote in a recent article. “The DC Circuit typically agrees to rehear a case only a few times each year, at most, usually where there is a sharp split on an important issue on which other circuits have taken a different stance,” Schwartzman wrote. “This case doesn’t meet those criteria and thus starts out as a particularly poor candidate for rehearing.”

There is no fixed timeline for the DC Circuit to respond to the broadband industry’s petitions. Federal courts typically respond to en banc requests within a few weeks, but given the fact that August is a slow month for the federal bench, the court could wait until September or even October to respond, according to Schwartzman.

Comcast’s proposed $45 billion purchase of Time Warner Cable won’t violate US antitrust laws or federal public interest rules, a senior Comcast executive said.

On the contrary, a merger between the two largest cable companies in the country will be great for consumers, Comcast executive vice president David Cohen said. Cohen made his comments as opposition to the deal continues to grow from public interest groups, lawmakers, and industry observers. Critics of the deal say the merger would concentrate too much market power in the hands of a single media and entertainment behemoth, potentially leading to higher prices for consumers. Comcast dismisses such fears and insists that the merger will result in better service for consumers.

Cohen acknowledges that the deal’s implications for the broadband market are “appropriate to think about and discuss,” but argues that it’s “not a very scary story,” due to increasing competition from wireless broadband. “I think it’s indisputable today that wireless is certainly beginning to be an effective competitor and substitute for at least many uses of broadband,” Cohen said.

Comcast argues that bigger is better. “Sometimes big is a bad thing,” said Cohen. “I acknowledge that. But sometimes big is really important, really necessary and really good. And that would tend to be in high capital expenditure industries, in industries where innovation is fast moving and where you need a lot of investment in R&D and innovation to keep pace. And that is our industry.” He added: “The rationale for this transaction is all about scale. We are going to get bigger.”