ANALYSIS: Call for review of FCC reversal of the 2015 reclassification of internet services to Title II has support of 50 US senators and 80 representatives
Opponents to the move by the Federal Communications Commission in December to undo the 2015 reclassification of internet services to Title II announced that a Republican lawmaker has joined the ranks of Senators who plan to vote in favor of a resolution overturning that action.
All 47 Democratic members of the Senate and the two independent members have all signed on to support the resolution under the Congressional Review Act that would overturn the FCC action. Republican Susan Collins of Maine became the 50th senator to support the resolution.
If one more Republican joins the effort to raise the tally to 51, then the Senate can send their resolution to the House of Representatives. For the CRA resolution to take effect, the House must pass it, and the President must sign it. If that happens, the FCC vote will be overturned by Congress.
Meanwhile, 21 states and the District of Columbia have filed suit with the U.S. Court of Appeals for the District of Columbia asking the court to review the FCC order. The attorneys general for the states are asking that the court determine that the FCC order is, “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act.”
The suit also asks the court to determine that the FCC action violates several laws including the Constitution, the Communications Act and conflicts with other requirements.
This filing is actually a petition to protect the states right to take further action in case the FCC order is constructed to take place immediately upon release, rather than when it’s published in the Federal Register. The FCC published the full orderon Jan. 4. Normally federal regulations become effective when they’re published in the Federal Register and that usually takes between 30 and 90 days after the text is released by an agency.
The CRA also depends on the date that the FCC order becomes effective and a report is sent to Congress. Once that happens, the sponsors of the resolution can file it in either house of Congress where it will be referred to a committee. A group of at least 30 Senators can force the resolution out of committee and on to the floor of the Senate for a vote.
If the backers of the CRA resolution can get one more vote, then the resolution will pass. If they can’t, the Vice President will cast the tie-breaking vote and if he’s opposed to the resolution, which apparently he is, then that will kill the measure. If it passes, then it’s up to the House.
Barring congressional action, the only other thing that could prevent the FCC order from taking effect whenever it is published in the Federal Register would a court order against it.
Whether the opponents of the FCC Open Internet rule will prevail remains to be seen. But despite the fact that Republican lawmakers seem generally opposed to reversing the FCC’s December decision.
That’s because the whole net neutrality issue has become a hot button issue with voters across the country. Opponents of the FCC order have been successful in rallying support to block the decision, despite the fact that almost nobody knows what’s actually in the FCC order, nor do they understand what net neutrality actually is.
In this case, however, the facts don’t really matter. The entire House of Representatives and a third of the Senate are up for reelection and the Republicans are in a tenuous position. Now that net neutrality has become an important issue for the Democrats, there will be many Republicans that don’t dare vote in a way they think voters might see as being against net neutrality however it’s defined.
The congressional and court actions will proceed in parallel, along with some additional lawsuits that will be filed soon by advocacy organizations. Observers on both sides expect the Senate effort to reach the required 51 votes needed to force passage of the CRA resolution. There’s a reasonable likelihood that the House will pass it, if only because it’s an election year. It will all depend on whether President Donald Trump decides to sign it, and at this point, the White House isn’t saying.
After a random amount of time ranging from a couple of weeks to years, some action overturning the FCC rule might happen, or it might not. The chances of actual action beyond the CRA resolution are unlikely, if only because most of the legislators will be out running for reelection, and won’t want to be bothered to take the time to pass legislation that would establish network neutrality as the law of the land.
This means that there will probably not be any legislation that might untangle net neutrality before next year when a new Congress is seated and it might not happen even then. Unfortunately, the one thing that is most needed is the one thing that’s least likely to happen any time soon.
Congress won’t be able to bring itself to pass any net neutrality legislation until 2019 at the earliest and then it will depend on a bipartisan agreement that the president is willing to sign.
In other words, don’t hold your breath.
Originally published on eWeek
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