On December 21 last year, the Federal Communications Commission (FCC), led by chairman Julius Genachowski, voted 3–2 to impose “neutrality” regulations on the Internet. At the time, dissenting commissioner Robert McDowell noted that the day—quite literally—was the “darkest day of the year.” The regulatory winter, however, may prove to be a short one.
Not only is Internet regulation under attack in Congress and the courts, but there are signs that Genachowski may soon take a new post at the Commerce Department, leaving his signature initiative in doubt.
The latest blow to the FCC’s regulatory ambitions came Wednesday afternoon as a subcommittee of the House Commerce Committee voted 15–8 to “disapprove” the FCC’s new Internet rules. Under the 1995 Congressional Review Act (CRA), such “resolutions of disapproval” provide a fast-track method for Congress to review regulations adopted by agencies and void them.
Defenders of the regulation cried foul at the use of the CRA. In particular, Representative Henry Waxman (D–CA) waxed eloquent on the flaws of the process, calling the expedited debate and bar on amendments “fundamentally unfair.” “This bill,” he declared, “is being rammed through under procedures that take away the minority’s most basic rights.” Strangely, Waxman failed to mention that he himself co-sponsored a resolution of disapproval in 2008 using the same CRA procedures in an attempt to stop the FCC from revising its media ownership rules.
Yesterday’s action was a critical step toward a vote by the full House on disapproval of the neutrality rule. Ultimately, however, the resolution process will not be sufficient to void it. Presidential approval is needed to fully enact the measure, and that is not likely to be forthcoming. But the CRA is only one among many avenues being pursued by congressional opponents, including denying funds to enforce the rule. Such steps are more likely to succeed, especially if they are attached to other legislation favored by the President. At the same time, the legality of the neutrality rule is being challenged in court, where the outlook is even bleaker for the FCC.
The difficulties the FCC faces as it tries to defend its Internet regulations are no doubt clear to Genachowski as well as to the White House. And rather than stay and fight it out, there’s talk this week that Genachowski may leave the FCC to become President Obama’s Secretary of Commerce. Technically, that would be a promotion. But it would also allow Genachowski to escape the fallout from the defeat of net neutrality and allow the FCC to refocus it efforts on a new agenda—one that does not involve a federal takeover of the Internet.
Of course, it is far from certain that Genachowski will leave or that a move would signal such a change in tack by regulators. But as the days once again grow longer, so do the odds against the survival of the net neutrality rules.
