Senate Dems File Discharge Petition for CRA Resolution
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Wednesday, May 9, 2018

Senate Dems File Discharge Petition for CRA Resolution

Senate Democrats today filed a discharge petition to force the Republican leadership to schedule a floor vote on Sen. Ed Markey’s (D., Mass.) Congressional Review Act resolution to overturn the FCC’s December 2017 restoring Internet freedom (RIF) order.

Resolutions adopted under the CRA bar future adoption of substantially similar rules without congressional authorization.

CRA resolutions face time restrictions with respe ct to the agency action they overturn, but they also have advantages compared to other legislation. In the Senate, only a bare majority is needed to pass a CRA majority, compared to the 60 votes needed to pass most legislation. Only 30 senators’ signatures are needed for the discharge petition. Senate Democrats said today that the deadline for the vote on Sen. Markey’s CRA petition is June 12.

All 49 members of the Senate Democratic caucus have pledged support for the CRA resolution, along with Republican Sen. Susan Collins (Maine), so the resolution only needs to pick up one more vote to pass the Senate. Prospects are much dimmer for House passage, where Republicans also generally support the decision of the Republican-led FCC late last year to reverse the decision by the Democratic-led FCC in 2015 to classify broadband Internet access service as a Communications Act Title II common carrier service. The 2017 FCC action also eliminated most of the open Internet rules adopted by the FCC in 2015.

Even if both chambers pass the resolution, President Trump would be expected to veto it. In addition, some parties have suggested that CRA resolutions apply only to rulemaking actions and not to “adjudicatory” actions such as the 2017 declaratory ruling that broadband Internet access is a Title I information service. Because the U.S. Court of Appeals for the District of Columbia Circuit rejected a 2010 FCC action adopting net neutrality rules that the court deemed to be common carrier regulations without classifying broadband Internet access services as common carrier services, the CRA resolution’s elimination of the rulemaking portion of the 2017 order could leave the common carrier style rules of the 2015 order without the underpinning of common carrier regulatory classification to support them, this argument goes.

During a press conference this morning announcing the filing of the discharge petition, several Democratic senators emphasized that, if nothing else, they will force Republicans to be “on the record” regarding their position on net neutrality.

“We’re one step away from allowing the American public to see where their elected representatives stand” on net neutrality, and whether they “side with big special interests over average folks,” Senate Minority Leader Chuck Schumer (D., N.Y.) said.

Sen. Brian Schatz (D., Hawaii), the ranking minority member of the Senate communications, technology, innovation, and the Internet subcommittee, said that the discharge petition means that “there’s no place to hide.” He added, “People underestimate the passion of Internet supporters at their peril.”

Sen. Maria Cantwell (D., Wash.) said that the Republican majority is “on the side of Big Cable.”

Meanwhile, supporters of Title II classification, the 2015 net neutrality rules, and the CRA resolution today cranked up their advocacy and grassroots efforts, with some posting messages and “red alerts” on their websites and social media accounts urging visitors to register their support with their senators, in hopes of generating at least one more vote for the resolution.

Parties on both sides of the issue voiced their views, with many of those who oppose the CRA resolution calling for legislation to codify net neutrality protections instead. Among the points of contention over possible legislation are the regulatory classification of broadband Internet access, the treatment of paid prioritization, and the flexibility to be granted to the FCC for rulemaking and enforcement.

Cinnamon Rogers, senior vice president–government affairs at the Telecommunications Industry Association, said, “We urge Congress to protect the growth of our nation’s broadband infrastructure and pass bipartisan legislation to ensure a free and open internet. That is the best approach to removing regulatory uncertainty that for years has hung over consumers, broadband providers and manufacturers.”

She added, “Simply passing a CRA will be take us back to a flawed regulatory regime for the internet and perpetuate the unproductive partisan fight that has been raging on this issue. Those on both sides of the debate over the FCC’s action share widespread agreement that Congress should enact bipartisan legislation that addresses this issue once and for all.”

In an op-ed piece for CNBC, Senate Commerce, Science, and Transportation Committee Chairman John Thune (R., S.D.) said that despite his opposition to the CRA resolution, “I support net neutrality. I support rules that prevent blocking, throttling, and paid prioritization of internet traffic. I believe these principles should guide us on Capitol Hill as we work to expand broadband access to even the most remote and rural areas of the country.” He called the efforts to move the CRA resolution “political theater.”

U.S. Telecom Association President and Chief Executive Officer Jonathan Spalter said, “Supporting the CRA will not protect the open and vibrant internet we all want and consumers expect. To ensure safeguards and real net neutrality, America’s online consumers need Congress to come together and craft modern rules to end this debate once and for all.”

In an op-ed piece in the “Washington Examiner,” Free State Foundation President Randolph May argued that if the CRA resolution were to reinstate common carrier status for broadband Internet access service, it would weaken privacy protections by removing the Federal Trade Commission’s oversight. The FTC’s authority is subject to a “common carrier exemption.”

Among others issuing statements opposing the CRA resolution were the Competitive Enterprise Institute and Free Our Internet.

Incompas CEO Chip Pickering, a former Republican congressman, said, “Net neutrality is America’s policy. This is an 80-20 issue, with conservatives across the nation showing overwhelming support for strong open internet policies that help small, main street businesses compete.”

He added, “The net neutrality red alert should be a wake-up call for red state Republicans. The GOP base, especially younger conservatives, want strong net neutrality because it has launched a streaming revolution and makes starting a business easier and less expensive.”

Internet Association President and CEO Michael Beckerman said, “Consumers demand strong, enforceable net neutrality rules that protect Americans’ ability to choose what websites and apps they can access and use. It is essential that rules be reinstated through any means necessary, including the CRA, courts, or bipartisan legislation.”

Among others supporting the CRA resolution were Free Press, Public Knowledge, and the Consortium for School Networking. —Lynn Stanton, lynn.stanton@wolterskluwer.com

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