It’s widely anticipated that the new Republican-controlled administration will seek to roll back the FCC’s net neutrality rules. These rules require Internet Service Providers (ISPs) to treat identically all content that travels over their pipes. For example, an ISP cannot throttle the download speed of content furnished by its competitors. In his farewell speech, outgoing FCC Chair Tom Wheeler expressed guarded optimism that net neutrality will survive, though perhaps only after litigation.

The Commission’s initial net neutrality rules were struck down in 2014. The FCC had historically classified ISPs as equivalent to cable television companies for regulatory purposes. The DC Circuit ruled that the FCC lacked statutory authority to impose carriage requirements on such a provider. In response, the FCC reclassified ISPs as common carriers comparable to telephone companies. This move was upheld by the DC Circuit in June, 2016.

The new Republican-controlled FCC could undo net neutrality, but only through a new formal rulemaking that would surely be hotly contested. Alternatively, Congress could amend the Communications Act to prohibit ISPs from being treated as common carriers. Whichever course is followed, Wheeler expects that any rollback of net neutrality would engender litigation before the same court that upheld net neutrality just six months ago.