TR Daily RIF Order to Be Published Tomorrow; OMB Approval Still Pending
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Wednesday, February 21, 2018

RIF Order to Be Published Tomorrow; OMB Approval Still Pending

The FCC’s “restoring Internet freedom” (RIF) declaratory ruling, report and order, and order adopted in December is scheduled to be published in tomorrow’s “Federal Register,” with an effective date 60 days after publication.

However, the notice slated for publication says that certain provisions of the item directing amendment of the FCC’s rules are contingent on the Office of Management and Budget’s approval of modified information collection requirements, and that those provisions, and the declaratory ruling, report and order, and order will be effective upon the date to be announced in a future document announcing the OMB approval.

When the item takes effective, it will start the clock running for both court appeals of the FCC’s actions and passage of a Congressional Review Act resolution to void the order and bar similar agency action in the future.

Various parties, including the attorneys general of 21 states and the District of Columbia, Free Press, and Public Knowledge, filed “protective petitions” in three federal circuits — the First, Ninth, and District of Columbia — last month, to preserve their right to be included in a lottery to determine which circuit the case would be assigned to, in the event that the lottery was held before publication of the item in the “Federal Register.” Parties withdrew those petitions when the FCC did not submit the appeals for the lottery process (TR Daily, Feb. 16).

On Capitol Hill, Rep. Mike Doyle (D., Pa.) and Sen. Edward J. Markey (D., Mass) have been gathering supporters for CRA resolutions in their respective chambers in anticipation of the effective date of the item. As of Jan. 23, Rep. Doyle said 110 House members had agreed to co-sponsor the resolution. On Jan. 16, Sen. Markey announced that the CRA resolution had the support of all 49 members of the Senate Democratic Caucus and Sen. Susan Collins (R., Maine). With Republican leadership in both chambers and President Trump supporting the FCC’s actions, however, adoption of a CRA resolution would appear to be a long shot.

Meanwhile, the Computer & Communications Industry Association said today that it intends to file as an intervenor in support of challenges to the agency’s action.

CCIA President and Chief Executive Officer Ed Black said, “The FCC’s recent Order destroys rules that prevented online discrimination and protected both consumers and businesses. The open internet has been a catalyst for strong economic growth and a key means for all sorts of businesses across the country to directly reach customers. The FCC is instead handing big, incumbent Internet Service Providers the power to discriminate and even charge extra fees for access to particular websites and services. This would be a big departure from how the Internet has operated for decades and how policymakers have operated to protect consumers’ interests and access to communications and information.”

Mr. Black added, “We think there are strong grounds to appeal, and the tech industry will be part of the effort to overturn this Order. In filings with the FCC last year, CCIA outlined how the FCC’s latest action is wrong in its reasoning for withdrawing net neutrality enforcement, and how the FCC is wrong in its understanding of its own legal authority. The Commission’s flip-flopping will actually exacerbate legal uncertainty and potentially hurt not only network investment, but also investment in other parts of the internet ecosystem. CCIA looks forward to challenging the FCC in court.” —Lynn Stanton, [email protected]

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