WASHINGTON D.C. — In December, the Federal Communications Commission voted to roll back vast powers to regulate the Internet claimed by the FCC in 2010 and 2015. Today, that “Restoring Internet Freedom Order” (RIFO) was finally published in the Federal Register. The Order will go into effect in 60 days, at which time the Federal Trade Commission’s jurisdiction over net neutrality will be restored and the FCC’s role will shift to requiring broadband providers to clearly disclose their network management practices so the FTC can more easily police them.
Today’s formal publication also allows Congressional Democrats to officially introduce their resolution to block the RIFO under the Congressional Review Act. Democrats will have up to sixty days to do so. Once they do, the Senate Commerce Committee will have twenty legislative days to act before Democrats can force a Senate floor vote. With 50 co-sponsors in the Senate, Democrats can force, but not win, a floor vote, unless they gain another Republican vote, or one or more Republican Senators is unable to vote.
“Congress should focus on substantive legislation, not a CRA resolution with almost no chance of becoming law,” said TechFreedom President Berin Szóka. “Even if the CRA did pass the Senate, it is very unlikely to pass the House, and the White House has already said the President would veto it. Even proponents of the CRA concede it aims to build a political constituency rather than to resolve the debate. After twelve years of partisan jockeying, it’s time to resolve this issue by codifying net neutrality principles into law. Time spent letting the CRA farce play out could be spent working to pass legislation. If legislation doesn’t move in the next three months, it almost certainly won’t move this Congress, and it’s probably even more likely to be put off for political reasons the closer we get to the 2020 election. So the time to legislate is now.”
“Democrats have long understood that applying Title II to broadband is a terrible idea,” continued Szóka. “In the late 1990s, Bill Kennard, President Clinton’s FCC Chairman, warned against throwing broadband into the ‘morass’ of Title II and Senators John Kerry and Ron Wyden joined Republicans in warning that Title II would chill broadband deployment. Democrats rallied against Title II in 2010, especially the Congressional Black Caucus, who worried about discouraging broadband investment where it’s needed most: in marginal communities. But the CRA would lock in Title II forever. Democrats flip-flopped on Title II for purely political reasons: comedian John Oliver successfully redefined ‘net neutrality’ to mean giving the FCC broad power under Title II, President Obama embraced that framing in 2014, and sensible Democrats have been blocked from trying to negotiate a legislative solution ever since.”
“If the activists pushing the CRA really believed FCC Chairman Ajit Pai and President Trump are threats to democracy, why trust Republicans with broad power over the Internet?” asked Szóka. “Title II maximizes the FCC’s leverage over Internet companies. I don’t believe Pai, a principled Republican first appointed by President Obama, would abuse that power for political purposes. But there’s no telling what Trump’s second FCC Chairman, if there is one, might do to reward pliant Internet companies and punish the rest. Indeed, Democrats rightly decried Republican FCC Chairman Kevin Martin for doing precisely that just a decade ago, yet now they seem to have forgotten their own calls to ‘demolish the FCC.’ Even more chilling, locking in Title II gives Donald Trump sweeping emergency powers to order the very thing activists say they’re trying to stop: fast lanes for preferred content. Why any Democrat would want to empower Donald Trump to kill net neutrality in the name of saving net neutrality boggles the mind.”
“The sky isn’t going to fall when the CRA fails,” concluded Szóka. “The Federal Trade Commission will regain jurisdiction over broadband. The FTC, along with the Department of Justice, and State Attorneys General of both parties, will have broad authority to police net neutrality violations — even without any new federal or state legislation. Even so, Congress must still act: the only way to prevent the FCC from completely changing its approach to broadband every time the White House changes hands is to pass legislation that codifies net neutrality principles once and for all. With any luck, the debate over the CRA, and its almost certain failure, will force both sides to come to the table and resolve this issue. The clock is now ticking.”
We can be reached for comment at firstname.lastname@example.org. See more of our work on net neutrality, including:
- What’s Next For Net Neutrality? A Congressional Internet Caucus panel featuring Szóka
- Only Congress, not the FCC can fix net neutrality, Szóka’s Op-Ed in WIRED
- How net-neutrality advocates would let Trump control the Internet, Szóka’s Op-Ed in the Washington Post
- Why Do Democrats Want to Let Trump Violate Net Neutrality?, Szóka’s Op-Ed in Multichannel News
- Our statement on the use of the CRA to reverse the Order
- Our statement on the final text of the Restoring Internet Freedom Order
- Szóka’s blog on why the FCC’s order means little practical change for net neutrality
- Tech Policy Podcast #206: The Future of Internet Regulation Feat. FCC Chairman Ajit Pai
- Tech Policy Podcast #209: Restoring Internet Freedom? Feat. Brendan Carr, FCC Commissioner
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.