Effort to Reject Net Neutrality Rules Starts Up Again

Sen. Kay Bailey Hutchison, R-Texas, “will push for a Senate vote this fall on my resolution of disapproval,” the Senate Commerce Committee ranking member confirmed Friday. Minority Leader Mitch McConnell, R-Ky., is a cosponsor of the resolution. “I'm very disappointed that the FCC has decided to move forward with its misguided net neutrality order,” Hutchison said. “Companies and industries that use broadband communications have flourished over the last decade without government intervention, yet the FCC has chosen to ‘fix’ a problem that does not exist."

"It is absurd that these so-called progressive central planners want to impose a 19th Century regulatory structure on the most dynamic sector of our economy,” said a spokesman for Senate Communications Subcommittee Ranking Member Jim DeMint, R-S.C. Sen. Dean Heller, R-Nev., the newest member of the Commerce Committee, said it’s “disappointing that the FCC is continuing to move forward with a plan that will stifle innovation and investment in infrastructure at a time when our nation needs job growth.” DeMint and Heller are co-sponsors of SJ Res 6.

Republican senators can expect a fight from Commerce Committee Chairman Jay Rockefeller, D-W.Va. “I am disappointed that my colleagues want to use a legislative short cut to unravel these rules,” he said Friday. “I fear their actions will do nothing more than impede the investment and innovation we need in our digital economy.” Rockefeller said the FCC wrote “balanced rules that promote transparency and prohibit discrimination."

The CRA process rules help Republicans, who do not control the Senate. There are 51 Democrats, 47 Republicans and 2 independents in the Senate. Under the law, the joint resolution is filibuster-proof in the Senate and only requires a simple majority to pass. Motions to consider Senate joint resolutions can’t be amended and aren’t subject to motions to postpone or to proceed to other business. The act limits Senate debate on the resolution to 10 hours and doesn’t allow Senate motions to reconsider the vote on the joint resolution. The law requires a resolution to first go through the Commerce Committee, but Republicans can discharge the resolution and send it to the floor by collecting just 30 signatures on a petition.

However, the presidential veto threatened by the White House remains a major roadblock to the joint resolution. Even if Hutchison and McConnell can gather a simple majority to pass the joint resolution, they'll still need to find a two-thirds majority to overcome the anticipated veto by President Barack Obama. When in April the House passed its joint resolution by a 240-178 vote, the chamber failed to demonstrate it will have the requisite two-thirds majority to override the president’s likely veto.

"Passage is an uphill fight even though it’s privileged legislation,” that’s filibuster proof, said Potomac Research analyst Paul Glenchur. “But the Republicans have some hope they can gets a few Dems to create a majority, emphasizing reduced regulation to encourage investment in a weak economy. The Obama veto threat and inability to override is the big obstacle.” Obama is “squarely on the record as supporting net neutrality,” said MF Global analyst Paul Gallant. “So there’s not much doubt he would back the FCC and veto the resolution."

The GOP effort “may not necessarily be altogether in vain,” Medley Global Advisors analyst Jeff Silva said. “The GOP could use the fight to win passage of a Congressional Review Act resolution to win political points with its base in advance of the 2012 election by portraying open-internet rules as another example of unnecessary heavy-handed government regulation that hurts job creation at a time of stubbornly high unemployment in a wobbly economic recovery."

House Republicans cheered on the effort to reject the rules. House Commerce Committee Chairman Fred Upton, R-Mich., said publication in the Federal Register brings the rules one step closer to review by the Senate and the courts. Rep. Marsha Blackburn, R-Tenn., said the Senate should “act immediately on the resolution of disapproval and the House needs to bring up and pass my Internet Freedom Act so we can start to hold the FCC accountable.” Blackburn’s bill (HR-96) would say only Congress can make rules for the Internet. Rep. Joe Barton, R-Texas, another longtime critic of the FCC order, said he will “communicate [his] concerns” with Upton and Communications Subcommittee Chairman Greg Walden, R-Ore., “and see if they are interested in any legislative strategies.”

"Net neutrality is a net loser,” Blackburn said. “These regulations were approved last December and the FCC has been slow-walking them to avoid the lawsuits that are certain to be filed. It is just another example of a federal agency defying the will of the people.” Barton thinks the net neutrality rules “will be detrimental because they subject the Internet to unnecessary regulation,” he said. “The market is working properly and there is not a need for federal regulator intrusion."

Lawsuits Expected Soon

Neither Verizon nor MetroPCS had comment Friday on when they would file expected appeals with the U.S. Court of Appeals for the D.C. Circuit. Both filed legal challenges to the rules in January, asserting that they were licensing decisions subject to immediate review by the D.C. Circuit (CD Jan 26 p3), a move rejected by the court. Both said they planned challenges after the rules are published. Other challenges, including by such net neutrality proponents as Free Press, remain possible (CD March 10 p5). “Everything is on the table and we're considering all our options,” a Free Press spokeswoman said Friday.

Public Knowledge Legal Director Harold Feld expects to see challenges filed quickly now that the rules have been published. “Because where the case gets heard can pretty much determine the outcome, folks who don’t want any rule will file in the D.C. Circuit,” he predicted in a blog post (http://xrl.us/bmeaag). “Those who want the FCC to make rules but who think these rules are too wussy will file in other circuits.” The government looks at petitions filed within 10 days of publication in sorting through venue, he noted. In this case, the filing window closes on Oct. 3, since Oct. 1 is a Saturday, he said.

Feld doubts net neutrality opponents will seek a stay. “A stay request is not without risks,” he said. “If Verizon loses the stay request, that is likely to be seen as a sign that Verizon will lose on the merits. In addition, it is usual (although not required) that a party seeking a stay asks the agency to stay its own rules before asking the reviewing court for a stay. Verizon (and other challengers) have now had 9 months to file a request for a stay at the FCC and haven’t. It would be a little difficult to argue that they had to wait until the rules became effective to ask the agency for a stay."

Media Access Project Senior Vice President Andrew Schwartzman said he has no doubt Verizon and MetroPCS will appeal in the D.C. Circuit based on the same legal theories they articulated in their January pleadings. “One would expect the commission to move to dismiss ... because such appeals are filed under what the commission would say is an inapposite provision of the Communications Act,” he said. While their appeals can only be filed in the D.C. Circuit, other parties could file petitions for review in the D.C. Circuit or other circuits, he said.

Citizens Against Government Waste said the rules should be overturned. “Regulation of the Internet would prevent carriers from managing their own networks, including the ability to curtail viruses and other harmful content,” the group said. “Forcing wireless carriers to over-expose their networks to data-heavy applications, like streaming video, graphic-rich games, and movies and music downloads, would only exacerbate the problem and cause disruptions for customers. In other words, the perverse result of the final rules is to protect the people who are hogging bandwidth at the expense of those who simply want to conduct normal and non-disruptive transactions online."

Free Press is pleased the rules were finally published, said Policy Director Matt Wood. “But as we've said all along, the rules passed in December are riddled with loopholes,” he said. “They don’t do enough to stop the phone and cable companies from dividing the Internet into fast and slow lanes, and they fail to protect wireless users from discrimination that is already occurring in the marketplace and that will only get worse. ... While we intend to fight to make the rules stronger and to hold the FCC accountable, we believe the duty to protect Internet users lies with the FCC. We will rally against any attempt to take away or undercut the FCC’s responsibility to serve the public interest.”