WASHINGTON D.C. — Today, TechFreedom sent a letter to Congressional leadership and Members who have co-sponsored resolutions of disapproval under the Congressional Review Act intended to reverse the FCC’s 2017 Restoring Internet Freedom Order (RIFO), urging them to reconsider forcing a vote on these resolutions. Sponsors of the resolutions believe they will restore the Democratic FCC’s 2015 reclassification of broadband Internet access services (BIAS) as common carrier services subject to Title II of the 1934 Communications Act. However, because the change in classification is not considered a “rule” under the CRA, the resolutions introduced by Sen. Ed Markey (D-MA) and Rep. Mike Doyle (D-PA) cannot affect the classification of broadband.
The letter states:
Republicans’ use of the CRA … has infuriated … the Democratic caucus. But if Democrats intend to take revenge on Republicans through passing the RIFO CRA, they are shooting themselves in the foot. The CFPB CRA represents the outer boundary of the CRA because it represented the broadest possible interpretation of “rule” while maintaining the distinction between a “rule” and an adjudicatory “order.” Expanding the CRA’s scope even further, to erase that distinction, would effectively destroy the administrative state: almost any agency pronouncement since 1996 could now be subject to reversal by Congress under the CRA — or might be declared invalid in court, for not having been submitted to Congress for review.
Republicans intent on rolling back the last 22 years of administrative law might well embrace the interpretation of what constitutes a “rule” under the CRA that Congressional Democrats are currently advancing to repeal the RIFO. If so, Congressional Democrats will doubtless — and rightly — protest that the CRA is being abused. But they will have no one to blame but themselves for opening this Pandora’s Box — and consumers will suffer as administrative law is thrown into chaos for years, with every administrative agency’s ability to protect consumers called into question.
“Ironically, the one thing the CRA resolution would do is prevent the FCC from regulating any kind of transparency from ISPs, the only remaining aspect of the 2015 Open Internet Order,” said TechFreedom President Berin Szóka. “Attempting to interpret the CRA as covering the entirety of the RIFO would broaden an already broad statute. By weakening the CRA’s definition of a ‘rule,’ nearly any action by an agency can be overridden by Congress or struck down in court for not having been submitted to Congress for review. The D.C. Circuit has already ruled on almost exactly the same question.”
“Democrats need not take our legal analysis for granted: they have almost a month before the shot clock runs out,” continued Szóka. “That’s plenty of time to get a legal opinion from the GAO, just as Republicans did before using the CRA last week in a novel, but legal, way. If Democrats refuse to do so, they’ll be conceding that this is just political theatre.”
“The fight over the CRA is just a distraction from substantive net neutrality legislation,” continued Szóka. “This is the perfect time for Republicans and Democrats to work together to codify net neutrality rules and create a consistent, reliable regulatory framework. The current uncertainty created by a constant back-and-forth between Title I and Title II regulations is the worst-case scenario, stifling broadband investment and harming those most affected by the digital divide.”
The letter is signed by TechFreedom President Berin Szóka, General Counsel James Dunstan, and Legal Fellow Graham Owens.
We can be reached for comment at firstname.lastname@example.org. See more of our work on Net Neutrality, including:
- Tech Policy Podcast #215: The Net Neutrality CRA: Yay or Nay?
- Our statement on the need for net neutrality legislation
- Our statement on the impact of a recent 9th Circuit decision on the FTC’s ability to enforce net neutrality rules