Republicans have been fighting to overturn the Federal Communications Commission's net neutrality rules since before they were even passed in 2015. They may finally get their wish. The party will soon control the White House, both houses of Congress, and the FCC itself. But on the eve of his resignation as chairman of the FCC, Tom Wheeler, who ushered in the rules, says it's not too late to save net neutrality.

"Vigilance to protect things that we enjoy today must be our watchword," said Wheeler in a speech at the Aspen Institute in Washington, DC, today. The Obama appointee plans to resign his post on Inauguration Day next week.

'Why the sudden rush to undo something that is demonstrably working?' FCC Chairman Tom Wheeler

Net neutrality is the idea that all traffic on the internet should be treated equally, and that internet service providers shouldn't be able to discriminate against certain types of traffic. In other words, the Comcasts and Verizons of the world shouldn't be able to block Skype or other voice calling applications in order to advantage their own telephone services, nor should they be able to slow down Netflix or other streaming video sites in order to promote their own television packages. In early 2015, the FCC passed the Open Internet Order, which reclassified internet service providers as utility-like common carriers and forbid them from blocking or throttling sites.

The Open Internet Order was met with praise from consumer advocacy groups, but the telecommunications industry has always argued that the rules amounted to over-regulation. Republican FCC commissioners Ajit Pai and Michael O’Rielly have made no secret of their desire to roll back many of the regulations passed under Wheeler. “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation,” Pai said at an event in Washington, DC, last month.

“President-elect Trump has repeatedly noted the detrimental impact of the current stifling regulatory environment on the American economy overall, and he has promised fast relief,” O’Rielly said at the same event.

But Wheeler says it's not that easy for the FCC to overturn established rules. Under the Administrative Procedure Act, the commissioners will need to explain what has changed in the past two years since the Open Internet Order was passed to justify a revoking in the regulations. The telecommunications industry has argued that the net neutrality regulations would kill investment in infrastructure. But a report by the telco industry group US Telecom paints a different picture. Yes, the industry spent about a billion less in 2015 than in 2014. But it spent more in 2015 than it did 2013. Internet providers are expected to ramp up investments further in coming years as they build 5G wireless networks. "So where's the fire?" Wheeler asks. "Other than the desires of a few (internet service providers) to be free of meaningful oversight, why the sudden rush to undo something that is demonstrably working?"

Less Protection

The bigger threat, according to Wheeler, is that Congress will pass laws that pre-empt the FCC's regulations while offering less protection. For example, the Thune/Upton net neutrality bill. It would ban internet providers from creating so-called "slow lanes" on the internet. But it wouldn't stop companies from exempting sites or apps from data limits, a practice known as zero rating, which has become the biggest threat to net neutrality. This week, the FCC told Congress that zero-rated services from AT&T and Verizon, both of which allow their own video services to bypass customers' data caps, violate the Open Internet Order. But the FCC's Republicans had already told AT&T and Verizon not to worry about the FCC's findings until after the inauguration.

Protecting net neutrality from loophole-laden bills will require citizens to be vigilant. But net neutrality advocates could have some powerful companies on their side. "The ability of consumers and businesses to connect to and use open broadband networks is essential to the 21st century economy," Wheeler says. "The delivery of products and services that will define our future requires gatekeeper-free access to networks."

Wheeler points out that practically all cutting edge technologies—including artificial intelligence, augmented reality, driverless cars, the Internet of Things, and even boring old cloud computing—depend on internet connectivity. Companies ranging from Amazon to Microsoft to Salesforce have an interest in protecting the Open Internet rules. The rules even help internet providers like AT&T: A level playing field helps the company deliver its DirecTV Now streaming service to customers via other internet service providers.

Will such advantages be enough to persuade a Republican Congress to spare the Open Internet Order? Perhaps not. But the fight isn't over yet.