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The Congressional Review Act is not the Answer to Title II Repeal

By Jonathan Cannon | January 22, 2018

The founding fathers drafted the Constitution to create a more perfect republic. The cornerstone of this ideal is the separation of powers, which gives each branch distinct and unique powers. A legislative branch to create law, and an executive to enforce. As the federal government has grown, these lines have blurred as executive agencies have asserted legislative power.

Coalition Letter Supporting the Restoring Internet Freedom Order

The Federal Communications Commission (FCC) has always relied on a hands-off, light-touch regulatory approach to the internet allowing the market to regulate itself. This market-based approach enabled the internet to grow freely into the ecosystem on which our society now depends. But in 2015, under direction from the Whitehouse, the FCC decided to reverse course and subject the internet to heavy regulation under Title II of the Federal Communications Act of 1932.  Through Title II, the FCC classified internet service providers as “common carriers.” The FCC, now under Chairman Ajit Pai, repealed the Title II regulations and restored the light-touch approach that flourished for two decades.

Title II repeal clears a path for Congress to create sensible legislation that protects consumers against blocking and throttling of legal content, empowers the Federal Trade Commission (FTC) to challenge these practices under its anti-trust framework, and divests power from the FCC.

Instead, a group of senators chose to continue the political battle for net neutrality using the Congressional Review Act. The act contains a procedural mechanism that can force a floor vote to challenge an agency rule. If this passes both the House and Senate, and survives veto, the rule will be overturned and prevented from ever being re-enacted. The CRA also prevents the creation of any substantially similar rule.

In our increasingly divided a politically driven Congress, the CRA motion already received the benchmark 30 signatures required for floor action. However it is merely a distraction from the real work to be done. It is highly unlikely a move to reverse the Restoring Internet Freedom Order would make it to the president’s desk, and even more unlikely that he would sign it. It is nothing but an attention grab to keep the conversation of net neutrality on voter’s minds as we head into the election cycle.

That is why a 24 organization representing millions of Americans sent a letter to the Senate and the House opposing any kind of CRA of the FCC’s Restoring Internet Freedom Order.

If these senators actually wanted net neutrality they would focus their efforts on legislation. Rep. Marsha Blackburn (R, Tennessee) proposed legislation that prohibits ISPs from blocking and throttling legal content online. While this bill is not perfect, it at least recognizes the need for Congress to step in to solve this issue once and for all.

Without congressional action, net neutrality rules will keep going back and forth between utility style and light touch regulations. This confusion will harm the market, dampen innovation, and lead to additional problems in the future.

The framers of the Constitution crafted a separation of powers to prevent a concentration of power and ensure representation of the public through their elected representatives. Congress needs to re-assert itself as the branch that creates law, not one that reacts to executive action.

The CRA is a partisan game, and a delaying tactic. If Congress truly wants net neutrality, they will have to pass it themselves; the FCC will not do it for them and neither will the CRA.