Senate Dems want to use the regulation-busting process to reinstate net neutrality rules

The Federal Communications Commission’s Restoring Internet Freedom Order, which did away with the Obama administration’s onerous net neutrality rules, has officially hit the Federal Register. The legislative review clock is now ticking and Congress has 60 legislative days in which it could undo the FCC’s order under the Congressional Review Act.

The CRA was enacted in 1996 as a check on overreaching and burdensome regulations promulgated by federal agencies. Under the law, the review period starts once Congress receives the report on an agency rule or guidance, or it hits the Federal Register—whichever comes later. During that time lawmakers can pass a joint resolution of disapproval to strike down the rule.

{mosads}But blocking the FCC’s new order would put overreaching regulations back in place—it would essentially use a deregulatory rule to re-regulate an industry. This would be absurd.  

Of course, that hasn’t stopped Sen. Ed Markey (D-Mass.). In hopes of reinstating net neutrality rules, the senator has obtained the 30 co-sponsors required by the CRA to force a vote on the order. Among them is Sen. Cory Booker (D-N.J.), who attempted kill the CRA last year when senators were using it, as intended, to eliminate restrictive regulations put in place by the Obama administration. And Sen. Bill Nelson (D-Fla.) who called the CRA a blunt tool and claimed it would “wipe out thoughtful rules.”

Sen. Markey’s effort is a long shot to say the least—even supposing the measure could pass the Senate, it would be even less likely to get through the House and President Donald Trump would not sign it.

Nevertheless, Americans everywhere should be concerned that a senator would weaponize the CRA, a bulwark against overly intrusive government, to expand federal power and re-regulate an entire industry.

Reciting the same talking points that we’ve heard for months, Sen. Markey charged that by repealing net neutrality rules the FCC had “take[n] away a fundamental right that ensures the internet is a diverse, dynamic, and open to everyone.”

But the rules, which were based on archaic regulations originally designed to thwart 1930s telephone monopolies, were imposed by the Obama administration in 2015.  For decades prior to that, the internet could only be characterized as diverse, dynamic and open.

In fact, it was net neutrality that threatened to stifle rapid technological innovation and make internet less accessible, particularly to people in rural areas still awaiting broadband infrastructure.

The Obama rules forced ISPs to receive FCC approval for any new technology or business models and enabled the agency to partially regulate capital investment and impose taxes on internet use. Telecommunications companies, which typically face higher state and municipal taxes than other businesses, struggled under these additional compliance costs. As a result, investment in ISPs dropped by more than 5 percent between 2014 and 2016. And, according to one estimate, if the rules remained in place, as much as $45.5 billion in new ISP investments could have been lost between 2015 and 2019.

Net neutrality proponents claim the added regulatory burden is necessary to prevent ISPs from engaging in anti-competitive behavior like throttling content. They would have you believe that without the regulations the internet is the Wild West. It isn’t.

Under the Restoring Internet Freedom order, the job of policing the internet has now been returned to the Federal Trade Commission.

What’s more, when the Obama FCC first began pursuing net neutrality in 2010, it could cite only four minor examples of anti-competitive content throttling behavior. Current FCC Chairman Ajit Pai aptly described the rules as “a solution that won’t work to a problem that doesn’t exist.”

Forcing ISPs to uniformly prioritize content means that videos of a cat playing the piano gets the same treatment as a telemedicine session between a doctor and patient. And hospitals, businesses, or other consumers are prevented from paying extra so that certain critical bits could be delivered to screens at a faster rate than others. 

That doesn’t make things fairer, it just limits options for consumers who are capable of deciding whether speedier service is worth the additional cost. (At this very moment, thousands of Amazon customers who value immediate gratification are splurging for one-day delivery while the more frugal choose to stick with the standard delivery option.)

Banning “paid priority,” as it is called, also makes it harder for smaller ISPs to compete—contrary to Sen. Markey’s claims that net neutrality would “level the playing field away from big corporations.” Small companies have fewer resources than their larger counterparts and they rely on the additional revenue paid priority provides.

The disastrous consequences of the Obama administration’s heavy-handed net neutrality rules were a prime example of Washington bureaucracy run amok—exactly what the CRA was designed to guard against. Sen. Markey won’t be successful but his effort to transform the regulation slicing CRA into a roll of red tape should be sharply condemned.  

Mary Kate Hopkins is the director of federal affairs and Michael Lambert is a federal policy analyst at Americans for Prosperity.