Bridge Span 18-7: A CRA and the Ghouls of the Senate

For two decades the internet hummed along, creating new opportunities for people, business, and ideas. For all that time, under both Democrat and Republican control, the FCC, following the clear lead of Congress as laid out in the 1996 Communications Act, pursued a light regulatory touch while staying out of the way of progress, innovation and invention. But, unfortunately in 2015, the FCC in the thrall of activists, abruptly changed course acted strictly along party lines and without citing any harm or unsolved challenges, placed the internet under heavy handed government control that went far beyond the principles of net neutrality and imposed the “Open Internet Order.”

This move “reclassified” broadband traffic as a Title II telecommunications service, meaning that broadband providers of all sorts would have to manage their systems, and be beholden, to government technology restrictions literally more than 70 years old. Those rules were created to regulate rotary dial telephones provided by a monopoly. Rarely has a better example of government hyper micro-management of an imagined potential future concern been conceived. Of course, the rules were never about solving a problem, fixing a broken process or protecting consumers. In fact, they placed consumers at risk as the new rules eliminated proven privacy protections for consumers. Instead the heavy-handed regulations were merely about placing one of the most innovative, vibrant sectors of the U.S. economy into the unrelenting grip of government control. Investment plummeted, consumers lost out on new innovations and privacy was placed at greater risk.

Thankfully, in 2017, the FCC moved to strike this approach, restoring the historical free and open internet. Restoring an internet to once again include a light regulatory touch while staying out of the way of progress, innovation and invention.

But now Senate Democrats want to return to those days of ill-conceived heavy-handed control and are willing to take advantage of the severely ill Senator McCain to get their way. Tomorrow, Senator Markey will begin the process of forcing a vote to overturn the light touch FCC rules using the Congressional Review Act. The Congressional Review Act empowers Congress to reverse a recently passed federal regulation and, if successful, the CRA vote blocks any future consideration of the rule so that agencies do not just pass the same rule again batting it back to Congress.

To pass, the CRA only requires 50 votes given Senator McCain’s absence, providing an advantage to those who merely want a political victory. The vote will largely be a piece of Congressional theatre, political kabuki in advance of elections, as the issue is highly unlikely to move forward in the House or receive a signature by the President. This fact makes the timing of the vote all the more unseemly, to exploit Mr. McCain’s medical absence.

Several political types, including some in the Senate, have done the right thing, such as Senator Graham, Joe Biden or Joe Lieberman who all have gone to visit with Mr. McCain as he recovers from recent hospitalization. Senator Chris Coons abstained from a confirmation vote for Mr. Pompeo out of respect to the absence and recovery of Senator McCain, allowing the nominee to move forward. Sadly, others scheme and ghoulishly leverage the brain cancer treatment, surgery and recovery, merely for political one-upmanship.

The end result of this game is only harm to consumers as their privacy protections are again ripped away, a massive decrease in investment and innovation, and one more severe blow to decency in the U.S. Senate. Any one Democrat, or more, could do the right thing. What is that?

There is no doubt that “net neutrality” is an issue that Congress must address. Congress is designed with the intent that it is the institution to project the will of the people. The FCC’s role has no such intent and the FCC no such design. We cannot afford to risk our future of health, communications, transportation, entertainment, work and education to those preferring social experiments above social success. But that said, the right format is a real debate on the subject, not a debate about an arcane procedure to reverse a reversal of a less than thoughtful administrative order.

Those who would show support to Mr. Markey should do so by doing all they can to force the Senate to consider net neutrality legislation during this session. At the same time they should leave the CRA opportunism behind.

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