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Questions Abound

Changes Coming for FCC, FTC Under Trump Administration, Observers Agree

The incoming administration of President-elect Donald Trump will mean changes for the FCC and FTC, but also hopefully will come with more certainty that can withstand the next administration shift, said panelists Thursday at an event hosted by the Information Technology and Innovation Foundation and the Technology Policy Institute. They singled out net neutrality and rules on privacy as critical issues that merit stable regulatory grounding.

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FTC Commissioner Maureen Ohlhausen suspects certain challenges will continue to center on the 9th U.S. Circuit Court of Appeals ruling on its fight with AT&T Mobility, which the agency appealed. “Companies that we thought could take advantage of [the Privacy Shield trans-Atlantic data agreement] can’t take advantage of it,” she said of the court ruling. “That’s going to be a challenge in the world ahead.” There will thus be “some work to do” to ensure the agreement can apply as “comprehensively” as hoped, she said. If a Republican FCC undoes its net neutrality order and accompanying reclassification of broadband as a common carrier -- a key issue due to the common carrier exemption from FTC jurisdiction -- “it would only address it partially,” said Ohlhausen, who will soon be in her agency’s majority. “If the open internet order gets overturned and that reclassification gets undone ... you still have this lingering problem of the 9th Circuit’s decision. That can be changed by statute.” She expressed a desire for “similar data” to be “treated similarly,” based less on who holds it and with more attention to data sensitivity.

Whether we can pull off net neutrality, I don’t know,” said David Goldman, counsel to House Commerce Committee ranking member Frank Pallone, D-N.J. He judged it “premature” to say whether bipartisan codification would be possible, as some have suggested. Pallone “likes to legislate” but is “not willing to sign on to legislation where he feels consumers are not coming out ahead,” Goldman said. There’s “a lot to be seen” about how a Republican FCC would go about undoing the order, he said. “I think there’s probably more unknown right now than anytime I can remember,” Goldman said, suggesting uncertainty as the transition effort continues and as the new Congress comes together: “We haven’t done committee assignments at all yet.”

Legal insanity” is the best description for broadband classification changing based on administration party, said Wilkinson Barker communications lawyer Bryan Tramont. “It’s no way to run a country.” He foresees possible action on net neutrality within the courts, FCC and in Congress and is hopeful for bipartisan congressional resolution, “hopefully within the first year of the administration.” He hopes for a narrower bill rather than a bigger overhaul to accomplish this due to the prospects, he said. Tramont suspects a Trump administration “will favor the builders and the job creators,” by extension encompassing the ISPs: “It’s an extraordinary growth engine for the country.”

I really don’t think the companies have the appetite to see that swing back,” agreed Carolyn Brandon, a fellow with the Georgetown University McDonough School of Business, speaking about broadband reclassification. She thinks it’s overall too early to predict much about the new administration. Trump is “really not a traditional Republican,” she said, seeing some signs from his cabinet picks. “He certainly is someone who would want to see government move out of the way.”

Trump “underscored the great importance of technology” on both a domestic and international basis this week in meeting with tech executives, said Wiley Rein international communications-law expert David Gross. “I think these issues will be high on the agenda.” Gross suspects more aggressive trade enforcement and negotiation and said he will watch the Commerce Department’s stances under Wilbur Ross, the nominee for secretary. The Internet Assigned Numbers Authority transition won't be reassessed “because that was contractual,” Gross predicted.

Tramont hopes for an administration that won't infringe on agency independence, citing his discomfort with President Barack Obama making his positions so publicly known on issues from municipal broadband to E-rate. Goldman disagreed, saying Obama may not be “as guilty” on that front and insisting Obama has a right to “have an opinion and weigh in at the FCC,” like anyone. Tramont would prefer Trump not use Twitter to comment on agency proceedings, he said when pressed on the possibility.

The new FCC will have challenges, panelists agreed. “Zero rating being illegal has gotta be dead,” said Thomas Hazlett, economics professor at Clemson University. The two sitting Republican commissioners are “not shy” on the topic, said Brandon. Tramont found it “strange that the outgoing administration is weighing in on this,” with recent exchanges with carriers on the issue. “It is inconsistent with public interest to preclude those business models now.” Goldman is curious whether the new administration will maintain Trump’s stance on mergers and acquisitions, given Trump’s vocal opposition to AT&T buying Time Warner, on the campaign trail. “There are a lot of people who assume he walks away from it,” said Goldman.

Panelists said they will eye next steps on spectrum policy. Goldman cited the 2012 Spectrum Act, which helped set up auctioning and was widely acknowledged as a fast and notable accomplishment from the Obama years. “I would actually say to the next administration, ‘Try to keep up,’” Goldman said of spectrum. Expect “disruption coming, potentially, and that might well be good,” Hazlett said of spectrum, hoping for a departure from case-by-case spectrum allocations. Tramont said “the balance between license and unlicensed has probably tilted too far out of whack,” with a need for a swing back toward licensed, and lamented “too much romanticism of sharing, particularly dynamic sharing.”

Variance has gone way up,” said Hazlett. “When variance in Washington goes up, that’s very good for Washington, isn’t it?”