Concerns Emerging Over Possible GOP Use of CRA to Kill FCC ISP Privacy Rules

“That’s the danger, is that they may object to the rules but I’m not sure they want to prohibit the agency forever more from making a rule with respect to [ISP] privacy,” said Sen. Brian Schatz, D-Hawaii, who hopes to continue as Communications Subcommittee ranking member this Congress, in an interview. “That probably will compound the problem. They’d be more wise to use their appointment authority to get the FCC they want and change the rule rather than use CRA. CRA’s a blunt instrument and they have to be careful.”

“Look, there are going to be assaults on all of these issues, as you can already see, whether it’s through the regulatory agencies or legislatively,” said Rep. Anna Eshoo, D-Calif., who has led Democrats on the House Communications Subcommittee for years. “I just don’t believe that the American people went to their voting booths and said, ‘We’re here to insist on losing our privacy.’ So I think that this is the equivalent of a tin ear in terms of understanding the American people. It’s just as much a tin ear for the majority on the first day to go after and diminish ethics as it applies to the House of Representatives.” Republicans retracted an initial ethics office overhaul after intense public pushback.

The FCC approved its ISP privacy order Oct. 27 in a 3-2 partisan vote, tracking a proposal from Chairman Tom Wheeler (see 1611150026). They were published in the Federal Register last month and easily fall within the time frame for CRA targeting.

GOP offices have eyed CRA possibilities since the November victory of President-elect Donald Trump. The CRA is rarely successful, but the two Republican chambers of Congress combined with a Republican White House following a Democratic administration create such an opening for success, said Republican aides to Commerce Committee leaders last month, specifically seeing the ISP privacy rules as a contender for the tool’s use (see 1612020035). Republicans tried and failed to use the tool against both net neutrality orders and still eye the tool for ISP privacy after the start of the 115th Congress.

“Yeah, that is under discussion,” Senate Commerce Committee Chairman John Thune, R-S.D., told us last week. “Our staff’s talking with leadership staff about what the CRA list might include. And so at this point, it hasn’t been answered yet.”

“We’re looking at it,” confirmed Senate Judiciary Privacy Subcommittee Chairman Jeff Flake, R-Ariz., when asked about the CRA’s use against ISP privacy. He held a hearing on the issue last year and sent many letters to Wheeler about the rules.

Eyes on Jan. 30

An aide to House Majority Leader Kevin McCarthy, R-Calif., told us to expect CRA resolutions starting Jan. 30 due to 15 legislative days required as part of CRA requirements for privileged status. Republican leaders widely anticipate the use of CRA to roll back certain federal rules. “Where we can, we will use the Congressional Review Act to provide relief from job-crushing regulations,” House Speaker Paul Ryan, R-Wis., told reporters Thursday. The Senate Republican Policy Committee touted the anticipated use of the CRA last month but didn’t list FCC rules among the 11 it listed as likely targets.

“I think the likelihood of the CRA being used on the FCC's privacy order more likely to turn on procedural issues than concern over precluding future rules,” said Information Technology and Innovation Foundation analyst Doug Brake. “Although apparently untested by the courts, there is little reason to think the language in the CRA would preclude any future privacy order by the FCC. Rather the law would only prevent rules that are functionally the same as the Wheeler rules.” Brake said Republicans favor FTC oversight of privacy, so he saw no problem with Hill Republicans precluding FCC action on that, assuming the common-carrier exemption for the trade commission is addressed.

“Knocking the FCC out of the game by resorting to the little-used CRA process would remove crucial privacy protections for internet users, and likely replace them with precisely nothing for the short, medium and long term,” emailed Free Press Policy Director Matt Wood. “Whether in Congress or at the Commission, any time you hear complaints about a level playing field but the supposed answer is to scythe down every possible safeguard, you can be sure that it’s the big corporations and their lobbyists who are calling the shots.”

“The challenge will be, as always, getting anything through the Senate, even with expedited procedures in place to move things along,” Squire Patton said in a brief released Thursday, noting GOP lawmakers’ need to prioritize which rules to tackle due to timing constraints. “Given the limitations built into the CRA and the challenge of getting 10 hours of Senate floor time for each disapproval resolution, Republicans in Congress will likely need to prioritize their use of the CRA, while looking for other mechanisms (such as reconciliation) to advance their policy objectives. In the end, without reform to the CRA, the 115th Congress will be challenged to move more than a handful of resolutions to the President’s desk for his signature.” The CRA is “powerful” while no “panacea,” Squire Patton said.

“These take time to pass through the Senate, so we have to pick our fights wisely,” Ryan said during a Hugh Hewitt radio interview last week. “We are now coordinating with the Senate and the administration, the incoming administration, which ones go first, second, third and on and on, and then which regulatory problems can the president deal with unilaterally?” Much can be undone administratively, Ryan said, citing ongoing analysis.

Midnight Rules?

House Republicans passed the Midnight Rules Relief Act (HR-21) last week along partisan lines, which would amend the CRA to allow packaging of resolutions of disapproval. The chamber approved the same bill in November. Eshoo slammed recent House efforts to attempt to change the nature of the CRA as tantamount to destroying the tool as it exists now in ways she deems unconstitutional. The legislation is believed to face difficulty in clearing the Senate due to its partisan nature. Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., introduced a companion last week.

“Big question is whether Senate Democrats are able to block the Midnight Rules Relief Act,” said Brake. “If Democrats succeed, every CRA disapproval action will continue to be done one at a time, each requiring significant floor time. If each disapproval requires hours of floor time, it seems the privacy order may fall a ways down the priority list, especially if Republicans plan more significant modifications to [Communications Act] Title II authority down the road anyways. ”

House Republicans have been more proactive in calling in industry officials to discuss the possibility of a CRA resolution addressing ISP privacy, said a telecom industry lobbyist. Timing is a concern, and much may depend on whether the Senate takes up the Midnight Rules Relief legislation, said the lobbyist, saying his sense would be there’s not the bipartisan will for it to clear the upper chamber. Questions are being asked about what using the CRA would do for FCC ability going forward, but House lawmakers seem inclined to let the agency figure that out later, the lobbyist said.

“There’ll be a price to be paid for what they may think is a success,” Eshoo told us. “It would be really a bitter pill for the American people. Whether it’s CRA, whether it’s public sentiment, remember, Abraham Lincoln said, ‘Public sentiment is everything.’” Eshoo criticized any GOP move to go after the FCC privacy rules as “a profound lack of understanding of where people are."