WASHINGTON D.C. — Today, Congressional Democrats introduced the “Save the Internet Act,” a bill that purports to restore the FCC’s 2015 Open Internet Order (OIO). House Speaker Nancy Pelosi promised to move the bill swiftly to the House floor for a vote. Democrats hope to sign on at least the three Republican Senators who supported Democrats’ failed Congressional Review Act resolution in the last Congress to undo the 2017 Restoring Internet Freedom Order (RIFO) issued by the Republican FCC. Instead of trying to distill the 300+ page 2015 Order into statutory text, the one-page bill simply voids the RIFO (just as the CRA resolution tried to do), “restores” the OIO, and reinstates the regulations issued by the FCC in 2015 in the Code of Federal Regulations.
“This is a total sham, a fraud that cynically manipulates concern about net neutrality in a way that is carefully calculated to maximize Democrats’ political advantage instead of actually doing anything to protect net neutrality,” said Berin Szóka, President of TechFreedom. “Democrats are trying to revive their 2018 CRA resolution not because it would actually work, legally, but because they pressured three vulnerable Republican Senators into supporting that measure last year. Now they have the perfect political weapon: where the CRA allowed them to force a vote in the Senate but not the House, this time, the opposite will happen. They’ll rush through a vote in the House, forcing vulnerable Republicans to either join them in support of a fake net neutrality measure or allow themselves to be painted as trying to kill the Internet. Unless Trump decides it isn’t worth the political fight, there’s no way McConnell will allow a vote in the Senate, even if additional Republicans defect. That means the legislation is highly unlikely to be enacted — but then, that’s precisely the point: Democrats simply want to attack Republicans over this issue in the 2020 election. This is pure political theatre.”
“Rarely, if ever, has such a short bill raised so many obvious legal problems,” continued Szóka. “The CRA allows Congress to strike down ‘rules’ issued by agencies and to bar agencies from reissuing them, but the law doesn’t apply to ‘orders’ by which an agency reinterprets a provision of a statute. Congress can’t interfere with that function because it is essentially judicial, not legislative. So last year’s CRA resolution couldn’t actually have revived the authority claimed by the 2015 Order under Title II and Section 706, nor could this law. Of course, Congress may always grant new authority to an agency to regulate something, or directly address the classification of broadband, but that’s not what this bill would do. For that, you’d have to look at the four legislative proposals offered by Republicans since 2015, all modeled on the last serious Democratic bill introduced by then Chairman Henry Waxman in 2010. Simply reviving a defunct regulatory order isn’t legislation, and probably wouldn’t stand up in court when challenged.”
“The clearest proof that Democrats aren’t serious,” explained Szóka, “is that the bill doesn’t say anything about the CRA resolution Republicans passed in early 2017 to strike down the Democratic FCC’s 2016 Broadband Privacy Order. Without a statutory fix, the FCC couldn’t issue any broadband rules and, if Title II really were revived, the FTC would lose jurisdiction again — creating exactly the same gap in privacy protection Democrats decried so angrily in 2017.”
“It’s time for Democrats to stop playing political games and finally do what Congress is supposed to do: legislate,” concluded Szóka. “It’s now been almost eight years since they proposed any substantive legislative language of their own. If they truly care about net neutrality, they need to do what Republicans have been doing: trying to turn the language of the FCC rules into actual statutory text, instead of simply talking vaguely about ‘restoring’ the 2015 Order. If you set aside apart from Democrats’ preference for fighting about it over actually resolving it, all that stands in the way of resolving this issue is cleanly separating what have always been two different issues: net neutrality rules and the broader authority claimed by the Democratic FCC in the name of net neutrality — authority so broad it included the ability to impose price controls. Once Congress writes net neutrality principles into the statute, the FCC won’t need to keep trying to invent its own authority to regulate Internet services.”
* * *
Szoka explains the legal analysis behind this statement in a Medium post. He is available for comment at email@example.com. For more information on the issue, take a look at some of our recent work:
- Our May 2018 letter to lawmakers explaining why the CRA couldn’t revive Title II
- Our response to Harold Feld’s critique of our analysis of the CRA
- Our statement on the 2017 Blackburn bill: Republicans Propose Net Neutrality Legislation Again. Will Democrats Engage?
- Only Congress, not the FCC can fix net neutrality, Szóka’s op-ed in WIRED
- FCC Commissioner Brendan Carr interview on Tech Policy Podcast
- FCC Chairman Ajit Pai interview on the Tech Policy Podcast
- Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ blog post
- How net-neutrality advocates would let Trump control the Internet, Szóka’s op-ed in the Washington Post
- The Feds lost on net neutrality, but won control of the Internet, Szóka’s op-ed in WIRED