WASHINGTON D.C. — Today, the Senate voted to pass a resolution of disapproval under the Congressional Review Act to reverse the Republican FCC’s 2017 Restoring Internet Freedom Order (RIFO). The measure, introduced by Sen. Ed Markey (D-MA) was supported by all 49 Democrats, plus three Republicans.
But neither the FCC’s 2015 decision to make broadband a common carrier service subject to Title II of the 1934 Communications Act nor the RIFO’s reversal of that decision qualify as “rules” under well-established, if complicated, administrative law; as adjudicatory “orders” rather than “rules,” neither is subject to reversal under the CRA. Thus, even if the CRA resolution is ultimately enacted, it will not affect the regulatory status of broadband, nor will it reinstate the previous FCC’s net neutrality rules. In fact, the CRA would repeal the transparency rule reissued in the RIFO, the only part of the 2015 Order maintained by the Republican FCC, and bar the FCC from ever enforcing any transparency rule, absent new legislation.
“In case there was any doubt, the Net Neutrality, Inc.™ political machine just made it crystal clear that they don’t actually care at all about net neutrality,” said TechFreedom President Berin Szóka. “If they did, they wouldn’t have dismissed concerns that their CRA resolution, far from requiring the FCC to restore net neutrality rules, would actually take the FCC off the net neutrality beat altogether. They had until June 12 to get a legal opinion from the General Accountability Office as to what their measure would do — but they just didn’t care, because the point has always been simply to keep fighting about an issue that no one really understands, but that makes Democrats look like the heroic saviors of the Internet.”
“If the CRA does pass, we’ll just spend years litigating over this, instead of finally putting net neutrality principles on clear legal footing with legislation,” continued Szóka. “Sadly, that seems to be precisely what the Net Neutrality, Inc.™ machine wants, since resolving the issue would put them out of business. The activist groups who brought us to today’s moronic vote have built careers and entire organizations on sustaining public outrage over what would otherwise be an easily resolvable issue. Meanwhile, there won’t be any net neutrality rules on the books at all. Fortunately, the sky won’t fall without the FCC’s transparency rule: the Federal Trade Commission will still be able to protect consumers — but only once a court makes clear that the CRA didn’t actually reimpose Title II, because the FTC has no jurisdiction over common carriers. It could take years to be resolve that question in court.”
“If Republicans fear the political backlash for voting against the CRA in the House, they should fear the political consequences of the CRA passing even more,” concluded Szóka. “That would just kick the problem to the FCC and the courts, and Republicans will inevitably continue to be depicted as the villains. The only way out, politically, also happens to be the right thing to do: pass real net neutrality legislation, just as Republicans did in 2006, as Democrats tried to do in 2010, and as Republicans have offered to do since 2014. It’s time to stop waiting for Democrats to sign onto a bipartisan bill, and just pass a credible bill in the House. That will force the Senate to deal with the substance of this issue instead of playing cynical political games.”
- 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
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.