Deregulation, Undoing Net Neutrality Are TMT Priorities for a Trump Return

However, a Republican-led FCC could act quickly to reverse Chairwoman Jessica Rosenworcel's work by taking up pending petitions for reconsideration, industry officials told us. The FCC under Chairman Ajit Pai during Trump's initial term used this tactic in its first year, reversing several broadcast ownership provisions from FCC Chairman Tom Wheeler’s tenure (see 1711160054). Current pending petitions for reconsideration include those on the FCC’s equal employment opportunity order and from SpaceX against agency satellite rulings. "When you have situations where the FCC is required to issue rules by a particular deadline, that doesn't mean they can't go back through petitions for rulemakings and modify them," said Public Knowledge Senior Vice President Harold Feld. Dickinson Wright communications lawyer Lee Petro anticipates a rulemaking proceeding aimed at reversing the latest Title II classification of internet service would be ready shortly after a second Trump inauguration.

"It's certain that a Trump FCC would reverse the FCC's Title II decision, if the judiciary hasn't already done so," Free State Foundation President Randolph May told us (see 2407090046). A Republican FCC would also "almost certainly" revisit the digital discrimination order "to limit its reach," May said, "adopting an intentional discrimination standard rather than an unintentional disparate impact test."

A Trump FCC would likely be more flexible on matters such as SpaceX's Starlink participating in broadband subsidy programs, said Mark Jamison, American Enterprise Institute nonresident senior fellow. It also could be active in trying to reconcile and streamline the federal government's broadband programs and addressing their inconsistencies, he said. A Biden administration is unlikely to work with Congress on a modernization of the Communications Act, but a Trump administration could be more amenable, particularly on tightening vague language about Title II, Jamison said.

Former Commissioner Mike O'Rielly, who served alongside Carr on Pai's FCC, predicted a Trump FCC prioritizing a "wholesale reduction of burdens on industry," reflecting that providers have competitors. He said there is "a ton of work that could be done to eliminate all sorts of [regulatory] burdens" in industries from cable and telecom to satellite. He said deregulation might get even more attention than during the first Trump administration: "If it was a seven before, it goes to a 10." With "dramatic" changes in the video marketplace, May said a Trump FCC would likely consider eliminating legacy cable and satellite regulations "that no longer make sense" in a "streaming" world." O'Rielly said a returning Trump administration would also likely follow its previous playbook and appoint strong personnel in tech, media and telecom as it did with Grace Koh, who headed the U.S. delegation to the 2019 World Radiocommunication Conference.

Other early priorities of a Republican FCC would likely include USF reform and national security, because they’re bipartisan issues it could act quickly on after a new administration starts, said Strand Consult executive vice president Roslyn Layton, who was part of Trump’s first transition team. Most of the FCC’s proceedings on technology security and blocking Chinese companies under the current administration have been unanimous, she noted. “Those are two big bipartisan wins.” After that, the agency would likely consider more Republican-focused issues, such as eliminating net neutrality, rolling back digital discrimination rules and increasing deregulation, she said.

"There’s a battle for the soul of the conservative movement happening today, including on tech and information policy," R Street Institute Senior Research Fellow Adam Thierer said in an email. Trump inspired many on the populist right to abandon its focus on smaller government, and he demonized the media and Big Tech. However, his administration prioritized regulatory reform and downsizing the administrative state, Thierer said. "It’s unclear how this ideological schizophrenia gets reconciled if Trump returns to office, but right now the populist winds appear to be blowing in the direction of more meddling in tech and media markets to punish perceived enemies," he said. "Perhaps the only thing holding back this new impulse to empower government to achieve political ends is the fact that many on the Right also understand that hobbling America’s technology leaders isn’t a very smart way to counter China’s growing ambitions in these same fields."

Regardless of who is president, the FCC is heading into "completely unknown territory" with the end of Chevron (see 2406280043), said Christopher Ali, Pioneers Chair in Telecommunications at Penn State University. He said the FCC and other regulatory agencies could be much more tentative because of increased odds of being sued and the greater odds such litigation could succeed. Congress also could become a greater micromanager of agency programs, he predicted.

While a variety of items are primed for rollback in a Trump administration, the FCC in the Biden years hasn't generated "a lot of super-partisan stuff," largely because of the long stretch without a Democratic majority among the commissioners, said Feld. After the end of the Wheeler chairmanship, Pai made clear there was a sizable array of policies he wanted to roll back, Feld said.

A big tech policy question for a second Trump administration would be what to do about the FCC/NTIA memorandum of understanding (see 2208020076) and whether the agencies return to the old status quo of more aggressively making spectrum available for private use and not worrying as much about conflict with other federal agencies.

Federal agencies are also either close to or already within the window where the next Congress could overturn rulings by the Rosenworcel FCC using the Congressional Review Act, said Benton Senior Counselor Andrew Schwartzman. When the same party controls the White House and Congress following an election, the CRA “provides the new president an expedited procedure to review — and potentially block — rules and regulations completed by the previous administration,” within a certain window, according to a blog post on law firm Arnold & Porter’s website. Because the window is related to how many legislative sessions Congress has before the end of the year, it's difficult to precisely calculate ahead of time, but Arnold & Portal attorney David Skillman told us that under the current schedule the window likely opened at the end of May.

Project 2025

There is no mystery what a Trump administration's priorities would be, as the Heritage Foundation's Project 2025 report on conservative policy priorities is the blueprint, said Stuart Brotman, University of Tennessee at Knoxville journalism and media law professor. Carr is among the authors of Project 2025. One element of 2025 is a top-to-bottom regulatory review of seemingly obsolete FCC rules, Brotman predicted. He said there also would likely be more strict vetting of appointees with a focus on political loyalty to the Trump administration.

Pai was very deregulatory, and the FCC in a Trump administration would be likewise, Stuart Benjamin, co-director of Duke Law School's Center for Innovation Policy, told us. But along with a focus on doing away with net neutrality rules, there could be some areas where a Trump administration wouldn't be automatically deregulatory, as some Republicans are sympathetic to the anti-Big Tech stance of FTC Chair Lina Khan, he said. The FCC could end up tougher on Big Tech acquisitions than one might expect from a Republican administration, he said. There also could be internal disagreement among the FCC’s GOP majority between those leaning toward deregulation and others worried about Big Tech, he added.

Various programs aimed at providing broadband to low-income populations would be a lower priority in a Republican administration, due to wariness about subsidies, Benjamin said. He said that while both Democratic and Republican administrations are interested in auctions and opening spectrum to additional uses, Trump could emphasize alternatives to traditional licensing less — like the citizens broadband radio service spectrum-sharing model. Democrats also have pushed harder on ensuring smaller players participate in spectrum auctions than a Republican FCC likely would.

Digital First Project Executive Director Nathan Leamer, a former Pai aide, said he expects a Republican-led FCC to act on spectrum coordination among federal agencies, a focus of Carr’s chapter in the Project 2025 book. Leamer was also a contributor. "Assuming spectrum authority is restored, it's likely that a Trump FCC would move more quickly to make available more mid-band spectrum than has been the case in the last few years," May said, adding he expects "institutional reforms such as overhauling the merger review process by restricting ... use of extraneous conditions as cudgels to kill deals."

Some policy areas would likely see more continuity than sharp turns. For example, both Biden and Trump administrations would have a similar focus on China, Brotman said. Project 2025 includes the suggestion that the FCC could prohibit regulated carriers from interconnecting with insecure providers such as China Telecom.

It's still a question whether Rosenworcel will follow tradition and step down as chair should the administration change, Feld said. "I'm going to assume Rosenworcel will actually step down because she's an institutionalist," Feld said, which would bring the commission back to a 2-2 divide. "Last time, it was easy for Pai" to bring certain petitions to a vote because then-Chairman Wheeler stepped down and Rosenworcel had not yet been reconfirmed. "That's not a situation that [Commissioner Brendan Carr] would have" should he become the next chair. "When you have a 2-2 commission, and you have an agenda, you have a choice as the chair" to "compromise and save some [of] what you have" or "hold out until there's a vote," Feld said.

Media Outlet Licenses

While Trump might continue calling for FCC action against media outlets, the possibility of movement would surprise AEI's Jamison. Added Schwartzman, “If their agenda is to go after broadcast licenses, I don’t think they would pick Brendan Carr" as FCC chair. When then-President Trump invoked the FCC in calls for companies such as NBC to lose their “licenses” over reporting choices, Pai explicitly responded that the agency lacks authority to act against a broadcaster over its content. The Trump Campaign 2024, NAB, Pai and Carr didn’t comment.

Carr is a lawyer and understands what the agency can and can't do regarding the First Amendment, said Lee Petro, Dickinson Wright communications lawyer. He said it's unimaginable an FCC led by an experienced telecom lawyer acting well beyond the guidance of the Communications Act. In January, when Trump said in a speech that NBC and CNN are “crooked, they’re dishonest and, frankly, they should have their licenses or whatever they have taken away,” Carr declined to comment, saying he wouldn’t respond to candidate statements. Last year, Trump also threatened that Comcast’s “treason” would be "thoroughly scrutinized" if he's reelected president (see 2309290042).

“I’m not aware of any discussions to do anything with licenses or a retribution on media outlets that disagree with certain people or express certain views,” said Leamer. He said that the primary advisers to Project 2025 and the Trump campaign on telecom matters are largely former Pai staffers. They “are very much supporters of First Amendment free speech and the rights of journalists,” he said.

Last month, Carr blasted Loudoun County Public Schools in Virginia over a complaint filing asking the FCC to take action against Sinclair’s WJLA-TV Washington, D.C., over its news reporting. “Now they want the FCC to censor a news station for shining a light on their activities,” Carr said in a post on X. “I am a no, and the FCC should dismiss this filing without delay.” Carr has also excoriated the current FCC for what he has described as a targeted attack against Space X over the politics of head Elon Musk (see 2312140048).

The U.S. Supreme Court's Jarkesy decision also makes it unlikely that the FCC would be able to target Comcast or broadcasters, said Andrew Schwartzman, Benton Institute for Broadband & Society senior counselor. The FCC’s enforcement authority “may be greatly, greatly, greatly truncated by the Supreme Court decision,” Schwartzman said. “I would expect a good possibility that the commission will not be able to do a lot of routine enforcement, and that whatever enforcement it does do will be much more limited in scope." That would include attempts to go after stations for indecency violations or with little-used FCC provisions on news distortion, he said.

The Project 2025 plan does call for FCC action against NPR and PBS broadcast stations, though not in the chapter by Carr. In the section on the CPB, Heritage Senior Fellow Mike Gonzalez wrote that next president “should instruct the FCC to exclude the stations affiliated with PBS and NPR” from being designated as noncommercial educational stations. Many of those stations operate on NCE-only bands and have always operated under the regulations governing NCE stations. “NPR and PBS stations are in reality no longer noncommercial, as they run ads in everything but name for their sponsors," Gonzalez wrote. "They are also noneducational.”

"Public broadcasters are among the last truly local media organizations and one of the few which still earn the trust of Americans across the ideological spectrum," said Patrick Butler, CEO of America’s Public Television Stations. "The American people consistently identify funding for public broadcasting as the best investment the government makes after only national defense and food and drug safety. We will continue to make this case with Congress and the Administration, whichever party may control them, and we will do our best to earn their support.”

Not everyone sees Trump statements about news outlets' licenses as mere rhetoric. Expect "nothing good" with the many ways the FCC could be weaponized in a Trump administration, said Eric Goldman, co-director, Santa Clara University's High Tech Law Institute. Trump could instruct the FCC to exercise more oversight over media organizations with a focus on content control, despite the clear unconstitutionality of that approach, said the law professor. He said state laws such as Louisiana's requirement of the 10 Commandments being posted in public school classrooms carry the hope that the U.S. Supreme Court has shifted enough that those laws become constitutional. Goldman said a Trump White House would try again to unilaterally amend Section 230 itself the way it did with its 2020 executive order.