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The Sausage Factory

Dear FCC: Let Congress Legislate!

The Internet might get a whole lot more governmenty after tomorrow. The Federal Communications Commission (FCC) is set to approve a new policy that will allow it to regulate the Internet more closely. It is an attempt to ensure “net neutrality”.

Net neutrality advocates say that Internet service providers (ISPs) should not be allowed to give preferential treatment to some content providers. They say, for instance, Comcast or Verizon should not be permitted to set up “fast lanes” and charge content providers, like Netflix, more for a speedier delivery of their info. They also say that ISPs should not be allowed to bar consumers from viewing any legal materials. Opponents of new regulations point out that such regulations could discourage further investment into their networks. They say the Internet exists today without onerous regulations, and net neutrality has nonetheless been preserved. Besides, there is always the law of unintended consequences to consider – greater control by the government over the internet today to benefit one type of provider over another, can potentially be used against the same provider on other issues. Limited government involvement with the Internet has been a boon to creativity and innovation. It may come down to the age-old admonition: Be careful what you ask for.

Some net neutrality supporters are ardent and vocal, but the concept is still fairly obscure for most Americans – which explains why the typically reactive Congress has not sufficiently addressed the issue. In Congress’ failure to act (which may or may not be justified, considering its workload), the FCC is filling a legislative void.

FCC Chairman Tom Wheeler previewed the proposal in a February 4 opinion piece in tech magazine Wired. His column attracted criticism from a variety of sectors, but the most notable came from a colleague, FCC Commissioner Ajit Pai. Commissioner Pai, a Republican, went so far as to hold a press conference to criticize the regulations. He claimed that the proposal will eventually allow the government to regulate prices and impose taxes on ISPs. Pai has called on the Chairman to release the rule before the vote, which would break with their tradition of not publishing the final version until after it is approved.

Pai’s claims make the rule controversial in itself. However, the new proposal is more controversial because some are concerned that the Executive Branch unduly influenced the process. Both the House of Representatives and Senate government oversight committee chairmen issued letters to Chairman Wheeler requesting information on the White House’s dealings with the FCC. House Committee on Oversight and Government Reform Chairman Jason Chaffetz noted that reporters suggested Executive officials “potentially had an improper influence” on the process. Senate Committee on Homeland Security and Governmental Affairs Chairman Ron Johnson requested information to ascertain whether the FCC and the Executive Branch “respected the proper boundaries established by Congress between” the two. The Hill later reported that Chaffetz was not concerned about the President publicizing his views on the subject, but the Chairman “wants to know if there were direct staff-level discussions between the administration and the FCC that have not been disclosed.” A third panel, the House Energy and Commerce Committee, has also requested information, since they are concerned that under Chairman Wheeler’s watch, the FCC “is not sufficiently committed to fulfilling its obligation to operate independently, with processes that are open, fair and transparent”. So far, Chairman Wheeler will not testify before Congress until after the vote.

Aside from the investigations, the net neutrality debate has failed to attract much attention in Congress. Work on net neutrality legislation has stagnated, even when Democrats controlled both Chambers of Congress and the Presidency. The state of net neutrality policy in the country recently prompted The Washington Post editorial board to write, “It would be better if Congress finally did its job and agreed on a legislated plan that avoids more bureaucratic wrangling.” Timothy Lee, the tech editor for the reliably liberal Vox new site, wrote in early February, “A legislative compromise would leave both sides unsatisfied, but it would also provide some certainty about how the internet will be regulated in the future.”

Proposing a legislative solution to the net neutrality debate presents a conundrum for Republicans. According to the Congressional Research Service, some “contend that existing laws and policies are sufficient to deal with potential anti-competitive behavior and that additional regulations would have negative effects on the expansion and future development of the Internet.” Even if some contend the laws currently in place are sufficient to protect the Internet, the laws manifestly give sufficient cover for what some Republicans deem a government takeover of the Internet. A court case could unravel the FCC’s upcoming proposal, but that is not a long-term settlement to the debate, meaning the Congress would have to address it anyways.

Another problem facing the Republicans is that President Obama would not likely sign any net neutrality bill that this Congress would pass. He can get tougher regulations from the FCC as it is currently constituted, so there is no need to cooperate with Congress. But in the end, that also presents a conundrum for net neutrality supporters: Once a Republican is President and new positions open on the FCC, the forthcoming proposal on net neutrality could easily be overturned. Net neutrality supporters should welcome a legislative settlement to guarantee an open Internet.

An efficient and innovation-inspiring Internet is everyone’s concern. And, in the end, that’s why Congress, where everyone is represented, not the FCC, should settle the country’s net neutrality policy.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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