Next Tuesday, the FCC commissioners will meet to attempt to pass new Internet rules proposed by Julius Genachowski despite not having been explicitly granted that authority by Congress. The “open Internet” proposal is a watered-down version of Net Neutrality, and weakened enough that many Net Neutrality advocates are already pushing for the defeat of Genachowski’s plan. Senate Republicans want the entire effort stopped even before that happens, and have written a letter to Genachowski implicitly threatening to take action in the next Congress on curtailing the FCC’s authority:
Thirty senators have signed a letter making it clear that should the Federal Communications Commission implement “net neutrality” regulations during its December 21st meeting, the GOP will force a confrontation on the Senate floor over the rules. Doing so would provide insight into how Republicans, as a minority in the Senate, leverage its control over the House of Representatives to hamstring attempts by the executive branch to rule by regulatory fiat.
The letter questions the ability of the FCC to impose the regulations:
“You and the Commission’s general counsel have admitted in published statements that the legal justification for imposing these new regulations is questionable and “has a serious risk of failure in court.” It is very clear that Congress has not granted the Commission the specific statutory authority to do what you are proposing. Whether and how the Internet should be regulated is something that America’s elected representatives in Congress, not the Commission, should determine.”
At the beginning of the letter, the Republicans make it clear that they don’t believe for a moment that some crisis exists that requires extraordinary intervention form the FCC, nor has the FCC ever shown a reason for its attempts to end-run Congress on Internet regulation:
“Last year when you began the Open Internet rulemaking you promised that the process would be “transparent, fact-based, and data-driven,” yet the Commission to date has provided scant evidence to justify the need for your proposed intrusion into the broadband marketplace. Consumers today use and have access to more Internet services than ever before. Even during this economic turndown, tens of billions of dollars have been invested in new broadband infrastructure. Every day, Internet entrepreneurs offer new services, applications, devices, and content to users of broadband Internet networks. There is no evidence of the sort of market failure in broadband that might require expansive new powers for the Commission. …
The Internet has flourished over the last twenty years because of, not despite, a lack of government control and intervention.”
The letter is signed by 30 Senate Republicans. Fred Upton, the incoming chair of the House Energy and Commerce Committee, warned Genachowski earlier that any attempt to “pursue Net Neutrality through Title I or reclassification is wholly unacceptable,” and promised “oversight, hearings, and legislation to fight the FCC’s overt power grab.”
This shows that the incoming GOP caucuses in the 112th Session of Congress take the threat of regulatory expansion seriously, and are prepared to do battle over it. With 2012 approaching, 47 Republicans in the Senate would only need a handful of red-state Democrats to slap back the FCC, as well as the EPA and other agencies attempting to impose by regulation what Obama can’t win in legislation. It’s a serious balance of power issue, and this time we have a Congress and an electorate attuned to its dangers and its remedies.