FCC chair Julius Genachowski got an unpleasant surprise from what he must have previously considered a friendly Congress yesterday in response to his attempt to impose Net Neutrality through regulation rather than law. One hundred eleven Representatives — 74 of them Democrats — signed two separate letters telling Genachowski that the FCC should not consider proceeding with new regulations without explicit direction from Congress. Democrats worried about the impact on jobs, while Republicans called the regulatory thinking “19th-century”:
The Federal Communications Commission’s plan to impose Net neutrality regulations just became much more difficult to pull off.
A bipartisan group of politicians on Monday told FCC Chairman Julius Genachowski, in no uncertain terms, to abandon his plans to impose controversial new rules on broadband providers until the U.S. Congress changes the law.
Seventy-four House Democrats sent Genachowski, an Obama appointee and fellow Democrat, a letter saying his ideas will “jeopardize jobs” and “should not be done without additional direction from Congress.”
A separate letter from 37 Senate Republicans, also sent Monday, was more pointed. It accused Genachowski of pushing “heavy-handed 19th century regulations” that are “inconceivable” as well as illegal.
This amounts to approximately the last thing that any FCC chairman, at least one concerned with his future political prospects, wants to happen on his watch. Not only do Monday’s letters inject a new element of uncertainty into whether the FCC will try to repurpose analog telephone-era rules to target broadband providers, but they also sharply increase the likelihood of the process taking not many months but many years.
If Genachowski can’t deliver Net Neutrality regulation, he may not need to worry about his future political prospects. His candidacy for the FCC appointment was championed by the Left and widely opposed by the Right on the basis of this particular agenda. If Genachowski can’t deliver it with this Congress and President, don’t expect his allies to stick with him for another round of futility.
Republicans appear to be objecting on both practical and procedural grounds. Genachowski tried to do what the EPA did with carbon dioxide, which was to reshuffle definitions in order to grant his panel jurisdiction over a large section of the modern economy. Having agencies like the FCC attempt to bypass Congress should get this kind of reaction from elected officials, whose positions exist to pass laws in a representative-republic fashion in order to give the laws legitimacy.
Democrats seem less concerned with the arrogance that Genachowski’s strategy demonstrated than with the practical effects of allowing him to further harm job-creation prospects. That, apparently, is territory that belongs to Democrats in Congress.
Declan McCullough expects Genachowski to retreat:
It’s also true that no FCC chairman ever starts a fight with Congress during the budgetary process unless there’s a very good reason, and preferably very good odds of winning. Genachowski’s private-sector experience as general counsel and chief of business operations for IAC/InterActiveCorp has presumably made him aware of when it’s time to cut your losses and change the topic. How about those new iPhone early termination fees, for instance?
Which means that, unless something unexpected happens, the fight over Net neutrality will shift a few blocks down Independence Avenue from the FCC to Capitol Hill.
That’s where the debate belongs.