GOP Lawmakers in Uproar Over Net Neutrality Rulemaking

House Republicans “intend to conduct rigorous oversight and explore all our legislative options to put things back on the proper track,” said Minority Whip Eric Cantor, R-Va. He’s “disappointed” the FCC will “push forward with a partisan proposal to regulate the Internet in the face of a court that has questioned his authority, a Congress that has questioned his policy, and an American people that have said we need less government, not more,” Cantor said. He’s “also troubled by the process under which the proposed rules have been crafted,” Cantor said. “The companies that power our economy should not be forced to choose between bad and worse. … Imposing net neutrality requirements would significantly harm a key industry by shackling it with unnecessary and anti-competitive regulations at a time when we can least afford it."

The bulk of Hill action isn’t expected until January, after Republicans take control of the House and add members in the Senate, said analysts and industry lobbyists. Rep. Marsha Blackburn, R-Tenn., hopes public outreach this month can stir up enough opposition to scuttle the FCC’s vote, she told reporters. On a media call with her, Rep. Fred Upton, R-Mich., a frontrunner to become next Congress’ House Commerce Committee chairman, said the committee will “be like a dog to a Frisbee” and have “very heavy oversight over this issue."

Expect “stepped-up GOP criticism of Chairman Genachowski leading up to the scheduled Dec. 21 vote and continuing in more pronounced fashion next year” when the GOP gains seats in both houses, said Medley Global Advisors analyst Jeffrey Silva. Next year, Republicans are likely to offer legislation blocking the ruling, “but the Democrats’ continued control of the Senate make it doubtful any such measure could successfully make it out of Congress,” he said. Even so, “the likely lingering antagonism over the issue could bleed into other” communications issues, and flare up in congressional oversight and appropriations hearings, Silva said.

Hill action this month shouldn’t be ruled out “since the issue is hot right now,” said Potomac Research analyst Paul Glenchur. “But the House chairmanships change in the new year and it probably makes more sense for Republican critics to hold off till then,” he said. “With the limited time they have before Christmas break, letters and other vehicles to express displeasure could be the easier way to go.” Senate Republicans could try to force a vote on an amendment to the omnibus appropriations bill this year, but it would be near impossible to win enough Democratic votes, said a telecom industry lobbyist.

Hearings this session are unlikely because Democrats “probably see little political value in holding them,” said Silva. MF Global analyst Paul Gallant agreed: “I expect House Republicans would like to hold a hearing right away but I doubt that will happen until they formally get the gavel in January."

Sen. Kay Bailey Hutchison, R-Texas, said she plans to “explore all options available” to block the FCC from imposing net neutrality rules. She is the ranking member of the Senate Commerce Committee. “I have not seen any evidence to date that would justify this regulatory overreach.” Hutchison said she is “especially troubled that this action would occur without Congressional input and before the new members of Congress have been sworn in.” Senate Communications Subcommittee Ranking Member John Ensign, R-Nev., agreed: “The latest push by the FCC to impose new regulations on the Internet is the boldest attempt yet for the government to have the power to walk into our homes and have control over the most basic aspect of our daily lives.”

House Commerce Committee Republicans are glad the FCC isn’t taking a Title II approach, they said. But Committee Ranking Member Joe Barton, R-Texas, and Communications Subcommittee Ranking Member Cliff Stearns, R-Fla., asked Genachowski in a letter Wednesday how he intended to get around the Comcast court decision. “The D.C. Circuit ruled in its April 2010 Comcast decision that the FCC had failed to demonstrate authority under Title I to regulate Internet network management,” Barton and Stearns said. “We therefore write to request your analysis of the FCC’s authority under Title I to issue the proposed rule. In the absence of clear authority, the FCC should defer to Congress in this matter.” The two want answers by Dec. 10.

Upton said to disregard the “muted joy” expressed by some in the industry. They're pleased only that the commission chose the “lesser of two evils,” he told reporters. Blackburn said many Democrats also oppose the FCC moving ahead on net neutrality. But she said it was too soon to name Democrats who might work with House Republicans to overrule the agency. Rep. Mike Rogers, R-Mich., said the FCC rulemaking “is a sharp turn in the wrong direction.” Rep. John Shimkus, R-Ill., competing with Upton, Barton and Stearns for the Commerce Committee chairmanship, said: “Just before Republicans take control of the House, the FCC is pushing an ill-advised and harmful regulatory change despite a bipartisan majority of Congress being opposed to it."

Decisions on issues as big as net neutrality should be left to elected officials, Sen. Mike Johanns, R-Neb., told an FCBA luncheon Wednesday. The Comcast decision showed the FCC doesn’t have authority to proceed and should defer to Congress, he said. By moving ahead regardless, the commission will waste time battling with Congress and in the courts, he said. The FCC shouldn’t interpret Congress’ failure to reach a solution on net neutrality as reason to act on its own, Johanns said. “That doesn’t mean there isn’t a solution, it just means that Congress hasn’t gotten there yet."

Begich plans to withhold judgment until an order is finished, he said at the FCBA lunch. If it doesn’t seem like the commission has sufficiently engaged stakeholders, then Congress should intervene, he said. Begich disagreed with Johanns that the FCC has no role in deciding the issue. Commissioners were confirmed by Congress, and the FCC has the capacity to have a good public discussion, Begich said. Congress’ job is decide the commission’s jurisdiction, and let the FCC handle the details of individual issues, Begich said. If the FCC isn’t clear on its role, then Congress should step in, he said.

Markey, a longtime net neutrality proponent, had some suggestions. “An explicit ban on paid prioritization is needed to retain the ability of all Internet users to communicate and compete on a level playing field, preventing the emergence of fast and slow lanes that have been contrary to the nature of the Internet since its creation,” he said. And “a common policy framework for wireless and wireline broadband services should be a core component of the final open Internet order so that consumer protections are not determined by whether a user accesses the Internet via a fixed or mobile connection.” Markey said it’s “essential that the Commission has the authority necessary to enforce the elements of its order.” Markey supports reclassification, but said he awaits “further details and discussion about how the Commission proposes to ensure that it is on solid legal footing without such reclassification."

Genachowski received the most enthusiastic support from Rep. Mike Doyle, D-Pa., who said he sees the Dec. 21 vote as Christmas come early. Doyle said that industry should be “ecstatic” the FCC chose this path “over other scenarios.” Sen. Maria Cantwell, D-Wash., said she’s worried the rulemaking will be weak. “Based on his remarks, I am concerned” the plan isn’t “as bold as it should be,” Cantwell said. “We need a bold plan.” Congress should act first to “definitively determine broadband Internet regulations,” said Rep. Gene Green, D-Texas, who led a letter with 73 other Democrats this summer opposing Title II reclassification and is still reviewing the new proposal.