|
Off-site Links To Legislation and Other Information |
THOMAS.gov Bill Data--The Library of Congress |
Non-partisan Budget & Spending Information |
The White House |
National and International Resources We Use |
Does Your Opinion Match the Polls? |
|
Legislation News & Report (TM) TheWeekInCongress.com (TM) Managing America: Telecommunications
|
|||||||||||||||
|
TheWeekInCongress.com (TM) Week Ending April 8, 2011
H.J.RES.37 Disapproving the rule submitted by the Federal Communications Commission with respect to regulating the Internet and broadband industry practices.
The bill expresses Congress's disapproval of the rule adopted by the Federal Communications Commission (FCC) on December 21, 2010, relating to preserving the open Internet and broadband industry practices. The bill prohibits such a rule from having any force or effect. Once Congress enacts the resolution, the agency may not impose the same or substantially similar rules unless Congress enacts a new law specifically authorizing the agency to do so.
The rule at issue was created by the Federal Communications Commission asserting its authority
Some clarifying notes from the bill report:
Pro- “In the pre-broadband era of dial-up service, the FCC did require phone companies that provided enhanced services over their own telecommunications facilities to make basic transmission service available on a nondiscriminatory basis to competing enhanced services providers. The FCC did not, however, regulate retail provision of enhanced services. Thus, the FCC regulated the dial-up telecommunications service a phone company provided to connect subscribers to an Internet service provider. It did not regulate the Internet access service that the phone company or a competing Internet service provider offered to connect the subscriber to the Internet.”
“Congress codified `enhanced services' as `information services' in the 1996 Telecommunications Act. See 47 U.S.C. 153(20); H.R. Conf. Rep. No. 104-458, at 114-15 (1996). It also added section 230 to the Communications Act, making it U.S. policy `to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
The Comcast issue-
“Comcast had begun noticing that network demand by heavy users was impeding the ability of other subscribers to use its broadband service. To address the issue, Comcast engineers devised a way to intermittently hold traffic from peer-to-peer applications so that performance did not suffer for the majority of subscribers. Free Press and Public Knowledge filed a complaint alleging that Comcast's network management techniques were unreasonable and discriminatory. The FCC ordered Comcast in August 2008 to cease the network management practices.”
“By October 2009 the FCC proposed network neutrality rules, alleging the commission had ancillary authority to regulate broadband as an information service.”
“In April 2010, however, the D.C. Circuit vacated Chairman Martin's attempt to sanction Comcast, ruling that the FCC failed to demonstrate it had ancillary authority under Title I of the Communications Act to regulate network management. The court explained that Title I would only allow such regulation if doing so was reasonably ancillary to fulfilling an explicit FCC responsibility codified in another section of the Communications Act, and that the FCC had failed to show such a connection.”
“Chairman Genachowski next proposed reclassifying broadband Internet access service as a common carrier service so the FCC could regulate it under Title II… The FCC pivoted again, backing away from its reclassification approach, when approximately 275 members of the House and Senate from both sides of the aisle objected.”
“The FCC did, nonetheless, still adopt network neutrality rules Dec. 21, 2010. The rules allow the FCC: 1) to regulate how fixed and mobile broadband carriers disclose their network management practices, performance characteristics, and terms of service; 2) to regulate how fixed and mobile broadband carriers provide access to content, applications, services, and devices; 3) to determine whether the way fixed broadband providers carry network traffic is unreasonably discriminatory; 4) to regulate how fixed and mobile broadband carriers charge for carriage of traffic; and 5) to determine whether fixed and mobile providers' network management techniques are reasonable.”
Supporters of the bill hold that “When the FCC asserts regulatory jurisdiction over an area of telecommunications, the dynamic of the industry changes. No longer are customer needs and desires at the forefront of firms' competitive strategies; rather firms take their competitive battles to the FCC, hoping for a favorable ruling that will translate into a marketplace advantage. Customer needs take second place; regulatory `rent-seeking' becomes the rule of the day, and a previously innovative and vibrant industry becomes a creature of government rule-making. Advocates of government-mandated network neutrality have argued this is necessary to permit new and resource-poor innovators to bring their products to market; in fact, it will have exactly the opposite effect: innovators are better at fighting it out in the market with better products rather than fighting it out in front of the FCC with high-priced lawyers; they will lose out.”
Con- Opponents hold that “When the FCC elected to treat cable modem service as an `information service' under Title I of the Act in 2002, then-FCC Chairman Michael Powell stated that the FCC is `not left powerless to protect the public interest by classifying cable modem service as an information service. Congress invested the Commission with ample authority under Title I. That provision has been invoked consistently by the Commission to guard against public interest harms and anti-competitive results”. More dissenting views below...
Sponsor: Rep. Greg Walden (OR-2nd) Vote: Mr. Hoyer moved to recommit with instructions to Energy and Commerce. The instructions contained in the motion seek to report the same back to the House with an amendment to insert that the Continuing Appropriations Act, 2011 is further amended by striking the date specified and inserting "April 15, 2011", pending reservation of a point of order.
Mr. Walden
raised a point of order against the motion to recommit with instructions.
Mr. Walden stated that the provisions of the motion to recommit are not
germane to the bill. Sustained by the Chair.
Mr. Walden
moved to table the motion to appeal the ruling of the chair
On motion to table the appeal of the ruling of the chair Agreed to by recorded vote: 235 - 181 (Roll no. 251).
On passage Passed by recorded vote: 240 - 179 (Roll no. 252).
Cost to the taxpayers: Based on information from the FCC, CBO estimates that voiding this rule would have no effect on the budget. Pay-as-you-go requirements: Enacting H.J. Res. 37 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. Cut-as-you-go requirements: Regulatory impact: H.J. Res. 37 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would improve no costs on state, local, or tribal governments. No advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act were created by this legislation. Earmark Certification: In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, the Committee finds that H.J. Res 37 contains no earmarks, limited tax benefits, or limited tariff benefits. Constitutional Authority: H.J. Res. 37. Congress has the power to enact this legislation pursuant to the following: Article I, Section 8 of the U.S. Constitution (‘‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’’).
## All Rights Reserved. © 2011 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
MORE INFORMATION
DISSENTING VIEWS We oppose H.J. Res. 37, a resolution disapproving the rules submitted by the Federal Communications Commission (FCC) relating to the matter of preserving the open Internet and broadband industry practices, as reported. We oppose this misguided legislation because it will limit access and innovation, undermine job creation, and ultimately harm the Internet ecosystem.
The FCC's Light Regulatory Touch to Preserve and Promote an Open Internet The FCC has always played a critical role in our nation's development and deployment of broadband Internet services. When incumbent phone companies began to offer broadband digital subscriber line (DSL) services in the late 1990s, it was regulated as a `telecommunications service' under the Telecommunications Act of 1996 (the 1996 Act) subject to Title II of the Communications Act of 1934 (the Act), including provisions to ensure that those that offer such services do so on reasonable and nondiscriminatory terms.
Proponents of H.J. Res. 37 point to a 1998 FCC report to Congress widely known as the `Stevens Report' to justify their claim that retail availability of Internet access service was never regulated. But while the Report stated that Internet access service as it was then being offered was an `information service,' this distinction was premised on the fact that at the time, 98 percent of all households with Internet connections used traditional telephone service to `dial-up' their Internet access service provider. The Report thus treated Internet access service as `information service' because these providers owned no telecommunications facilities. When telecommunications companies began to offer their own DSL services, the transmission component of their Internet access service remained under Title II regulation. When the FCC elected to treat cable modem service as an `information service' under Title I of the Act in 2002, then-FCC Chairman Michael Powell stated that the FCC is `not left powerless to protect the public interest by classifying cable modem service as an information service. Congress invested the Commission with ample authority under Title I. That provision has been invoked consistently by the Commission to guard against public interest harms and anti-competitive results.' 1 [Footnote] [Footnote 1: Statement of Chairman Michael Powell, Inquiry Concerning High-Speed Access on the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet over Cable Facilities, FCC 02-77 (March 15, 2002).] On December 21, 2010, the FCC issued its Open Internet Order incorporating open Internet principles and building upon the existing record at the Commission to identify `the best means to achieve our goal of preserving and promoting the open Internet.' 2 [Footnote] It also represented the first attempt by the Commission to address the legal authority issues raised by the D.C. Circuit in Comcast. [Footnote 2: See Federal Communications Commission, Preserving the Open Internet, Broadband Industry Practices, Notice of Proposed Rulemaking p. 4 (Oct. 22, 2009) (online at http://hraunfoss.fcc.gov/edocsXpublic/attachmatch/FCC-09-93A1.pdf).] The FCC's Open Internet Order included a two-page rule that imposes limited obligations on broadband Internet service providers. The Commission based its authority to promulgate the rule on Section 706(a) and (b) of the 1996 Act as well as its Title I authority ancillary to explicit authorities granted under Titles II, III and VI of the Communications Act. First, it imposes a transparency obligation requiring both fixed and mobile broadband Internet access service providers to `publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services' and for content, application, service, and device providers to `develop, market, and maintain Internet offerings.' 3 [Footnote] Second, it prohibits fixed broadband providers from blocking lawful content, applications, services and devices to ensure consumers and innovators continue to have the right to send and receive lawful Internet traffic, with mobile broadband service providers subjected to a more limited set of prohibitions. 4 [Footnote] Third, the rules ensure the Internet remains a level playing field by prohibiting fixed broadband providers from unreasonably discriminating in transmitting lawful network traffic. 5 [Footnote] Finally, the framework recognizes the right of broadband providers to meaningfully and legitimately manage their network and provides flexibility to network providers to address congestion or traffic that's harmful to the network. 6 [Footnote] [Footnote 3: Id., at 65.] [Footnote 4: Id., at 65.] [Footnote 5: Id.,] [Footnote 6: Id.,] The majority claims that the FCC conducted no market analysis and failed to consider the cost-benefit of the rules. But the record shows that the FCC reviewed the broadband retail market and found that as of December 2009, nearly 70 percent of households lived in areas where only one or two wireline or fixed wireless firms provided broadband and that about 20 percent of households are in areas with only one broadband provider, making the ability to switch broadband providers difficult. 7 [Footnote] The FCC also pointed to the Department of Justice observations that: (1) the wireline broadband market is highly concentrated; (2) the prospects for additional wireline competition are dim; and (3) extent to which mobile wireless offerings will compete with wireline offerings is unknown. 8 [Footnote] Finally, the FCC based its analysis on the existence of a `terminating access monopoly,' finding that a broadband provider could force other content or `edge' providers to `pay inefficiently high fees because that broadband provider is typically an edge provider's only option for reaching a particular end user,' 9 [Footnote] thereby acting as a gatekeeper. [Footnote 7: Id., at 19.] [Footnote 8: Id., at 27.] [Footnote 9: Id., at 15.] In considering the cost-benefit of the rules, the FCC found that `we expect the cost of compliance with our prophylactic rules to be small, as they incorporate longstanding openness principles that are generally in line with current practices and with norms endorsed by many broadband providers. Conversely, the harm of open Internet violations may be substantial, costly, and in some cases potentially irreversible.' 10 [Footnote] Furthermore, the FCC concluded that `the benefits of ensuring Internet openness through enforceable, high-level, prophylactic rules outweigh the costs' because the rules are `carefully calibrated to preserve the benefits of the open Internet and increase certainty for all Internet stakeholders, with minimum burden on broadband providers.' 11 [Footnote] [Footnote 10: Id., at 3.] [Footnote 11: Id., at 5.] Consistent with the FCC's `hands-off' approach to the regulation of broadband, the Open Internet Order did not rest the Commission's authority on Title II of the Communications Act as traditionally applied to common carriers. The majority notes that 275 members of Congress weighed in with the FCC in opposition to the open Internet rules. In fact, congressional concern was largely focused on a proposal to reclassify broadband Internet access services under Title II of the Communications Act. By electing to proceed under Section 706 and under Title I of the Act, the FCC did not adopt what turned out to be the most controversial aspect of the open Internet proceeding. Indeed, the rules adopted by the FCC reflected broad consensus amongst stakeholders to codify many of the existing practices by broadband providers. The FCC's Open Internet Order Is a Product of Consensus and Compromise Despite efforts to portray the FCC's Open Internet Rules as an example of government overreach, the Order has received broad support from consumer and public interest groups, broadband Internet service providers, labor unions, as well as high-tech and edge companies: Broadband Providers. Jim Cicconi, AT&T's Senior Executive Vice President of External and Legislative Affairs, testified that the FCC's rules `landed at a place where [AT&T has] line of sight . . . [AT&T] can commit to these 10-year and 15-year horizon investments.' 12 [Footnote] Similarly, Time Warner Cable stated at the time of the Order's release that the rules adopted `appear to reflect a workable balance between protecting consumers' interests and preserving incentives for investment and innovation by broadband Internet service providers,' 13 [Footnote] That view was echoed by Kyle McSlarrow of the National Cable & Telecommunications Association (NCTA), who stated in a letter to Republican leaders of the Committee that NCTA supports the FCC order because `1) it largely codifies the status quo practices to which the industry has voluntarily committed; 2) it contains helpful clarifying language around such issues as what constitutes `reasonable network management;' 3) it provides greater certainty about our ability to manage and invest in our broadband services today and those we may deploy in the future; and 4) the alternative of Title II regulation . . . presented a stark and much worse risk to continued investment and job creation.' 14 [Footnote] [Footnote 12: House Committee on Energy and Commerce, Testimony of Sr. Exec. Vice President, External and Legislative Affairs, AT&T Jim Cicconi, Hearing on H.J. Res. 37 Disapproving FCC Rules Regulating the Internet, 112th Cong. (March 9, 2011).] [Footnote 13: Jeff Simmermon, FCC Votes on `Net Neutrality'--Here's Our Position, (Dec. 21, 2010) (online at http://www.twcableuntangled.com/2010/12/fcc-votes-on-net-neutrality-heres-our-position/).] [Footnote 14: Letter from Kyle McSlarrow President and CEO National Cable and Telecommunications Association to Reps. Fred Upton, Greg Waldon, and Lee Terry (March 7, 2011).] High-Tech Sector. The Open Internet Coalition, which includes companies such as Amazon, Netflix, Facebook, eBay, and Google, stated that the Order `would provide a degree of certainty to all participants in the broadband marketplace and help foster an open wireline Internet online ecosystem.' 15 [Footnote] Similarly, the Computer & Communications Industry Association (CCIA) and TechNet stated in a letter opposing H.J. Res. 37 that the FCC rule `allows flexible network management and does nothing to inhibit broadband network deployment, while it affirmatively facilitates innovation and investment in new online services, content, applications, and access devices by providing some minimal assurance they will not be blocked arbitararily.' 16 [Footnote] [Footnote 15: Open Internet Coalition, Statement on FCC Open Internet Vote (Dec. 21, 2010) (online at http://www.openinternetcoalition.com/index.cfm?objectid=6C430AD4-0D2C-1EOB78C000C296BA163.)] [Footnote 16: Computer & Communications Industry Association, Letter re: Open Internet (Feb. 14, 2011) (online at http://democrats.energycommerce.house.gov/sites/default/files/documents/CCIA%20-%20open%20internet%20letter.pdf).] Public Interest Organizations and Unions. In a joint statement, Consumers Union (CU) and Consumer Federation of America (CFA) praised the Order for helping to `resolve the current uncertainty in the Internet marketplace' and that while `unanimity on net neutrality may be impossible . . . inaction is unacceptable.' Mark Cooper, Research Director for CFA, further stated that `[t]he only way to preserve the open Internet is for the FCC to immediately put in place a pragmatic set of rules that gives teeth to the principles that have governed the open Internet since its inception. We need to establish facts on the ground and gain practical experience with network management in the broadband era . . . the FCC appears headed toward the right goal.' 17 [Footnote] In addition, the Communications Workers of America (CWA) supported the Order because it `resolves the issue in a way that protects an Open Internet yet provides for incentives for investment, economic development and the creation of quality jobs and sustainable communities.' 18 [Footnote] [Footnote 17: Consumers Union and Consumer Federation of America, Consumers Groups Welcome FCC Action on Network Neutrality (Dec. 1, 2010) (online at http://www.consumerfed.org/pdfs/Network%20Neutrality%20News%20Release.pdf).] [Footnote 18: See Communications Workers of America, FCC Vote Moves U.S. Forward on Broadband (Dec. 21, 2010) (online at http://www.cwa-union.org/news/entry/cwaXfccXvoteXmovesXu.s.XforwardXonXbroadband).] Overall, the Subcommittee received letters from more than 130 organization, including the AFL-CIO, NAACP, United States Conference of Catholic Bishops, American Library Association, American Association of Independent Music, Leadership Conference on Civil and Human Rights, League of United Latin American Citizens, National Organization for Women, Free Press, Sierra Club, and United Auto Workers all expressing their opposition to H.J. Res. 37. 19 [Footnote] [Footnote 19: All the letters could be found at http://democrats.energycommerce.house.gov/index.php?q=hearing/hearing-on-network-neutrality-and-internet-regulation-warranted-or-more-economic-harm-than-g] Overturning the Open Internet Order Will Inject New Uncertainty into the Broadband Marketplace, Threatening Investment and Job Creation According to Hamilton Consultants, the open Internet ecosystem has led to the creation of more than 3 million jobs ov e past 15 years. In 2010, the U.S. tech sector grew about twice as fast as the U.S. economy. 20 [Footnote] Since 1995, venture capital funds have invested approximately $250 billion in industries reliant on the Open Internet, including software, IT services, computers and peripherals, media and entertainment, as well as networking and equipment. [Footnote 20: Hamilton Consultants, Inc. Economic Value of the Advertising-Supported Internet Ecosystem (June 10, 2009).] Supporters of the Open Internet Order have widely praised the FCC action for removing regulatory uncertainty over broadband network providers and allowing investment to flow for both network operators and edge companies. That view is echoed by major Wall Street analysts such as Bank of America/Merrill Lynch, which found the rules to be eliminated `the net neutrality regulatory overhang' from telecom and cable stock 21 [Footnote] as well as analysts from Standard & Poor's, Citi, Credit Suisse, Goldman Sachs, Raymond James, and Wells Fargo. 22 [Footnote] [Footnote 21: Bank of America Merrill Lynch, Turning the page on net neutrality (Dec. 21, 2010).] [Footnote 22: See Wells Fargo Securities, Telecom Services & Cable Comments: FCC Outlines Plan for Open Internet (Net Neutraility), by Jennifer M. Fritzsche and Marci L. Ryvicker (12/1/10); Citigroup Global Markets, Alert: FCC Likely to Push Forward on a Compromise Solution for Net Neutrality Under Title I Instead of Title II, by Michael Rollins and Jason B. Bazinet (12/1/10); Credit Suisse, Genachowski's New Net Neutrality Framework; Generally Positive for MSOs, by Stefan Anninger and Ashton Ngwena (12/1/10); Raymond James, Redefining Success on Net Neutrality, by Frank G. Louthan IV, Jason Fraser, and Mike Ciaccia (12/1/10); Bank of America Merrill Lynch, The OTT Silver Bullet, by Jessica Reif Cohen, Ethan Lacy, and Peter Henderson (12/2/10); Goldman Sachs, FCC Net Neutrality Rules: A Framework, with a Lot of Wiggle Room, by Jason Armstrong, Derek R. Bingham, Ingrid Chung, and Scott Goldman (12/21/10).] The majority can only point to a single investment analyst to support its opposition to the Order--an outlier whose perspective contrasts sharply with most investment analysts. Contrary to the assertions of the majority, we believe H.J. Res. 37, if enacted, would generate new uncertainty into the broadband market, hampering investment and job creation. First, H.J. Res. 37 would undermine the Internet economy by allowing broadband operators to pick and choose winners and losers. It would allow broadband network operators to block applications, content, and services traveling on their networks absent any disclosure to consumers and without legitimate network management reasons. The Internet as it exists today would never have flourished if network operators were allowed to extend their control at the core of the network to the edge of the network in a manner that would restrict consumer choice. Indeed, economists such as Prof. Shane Greenstein of Northwestern University have raised the concern that the lack of open Internet rules will increase transaction costs for edge providers seeking access online thereby raising costs of introducing new products and chilling innovation and competition. 23 [Footnote] [Footnote 23: See House Committee on Energy and Commerce, Testimony of Shane Greenstein, Elinor and Wendell Hobbs Professor, Kellogg School of Management, Northwestern University, Hearing on H.J. Res. 37 Disapproving FCC Rules Regulating the Internet, 112th Cong. (March 9, 2011).] Second, broadband providers will continue to experience the regulatory uncertainty that the Order sought to minimize. In addition to taking away the `line of sight' for broadband companies to start making investment decisions, it is unclear what role, if any, the FCC will assert in this matter. Without a clear role for the FCC, broadband providers will have difficulty determining the scope of agency action or how the agency will address complaints about certain practices. Without clear rules of the road and a defined process, uncertainty will result. Finally, a Resolution of Disapproval under the Congressional Review Act (CRA) not only strikes the agency rule, it prohibits the agency from going forward with another rule that is `substantially the same' as the disapproved rule without additional congressional authorization. Therefore, H.J. Res. 37, if enacted, could prevent the FCC from going forward with rules that are substantially similar to the transparency, no-blocking, and nondiscrimination provisions approved by the agency in December 2010. How the term `substantially the same' would be interpreted might be subject to a reviewing court, and no court has so far opined on the term under the CRA. Passage of H.J. Res. 37 could therefore generate additional uncertainty for broadband providers, high-tech companies and investors, as well as the FCC. A Resolution of Disapproval Under the CRA Is a Blunt Instrument That Should Be Utilized Rarely Successful adoption of a Resolution of Disapproval under the CRA would strike down any disapproved rule in its entirety. 24 [Footnote] Therefore, if H.J. Res. 37 is enacted, it would overturn all of the provisions included in the Open Internet Order. Despite areas of broad agreement on certain aspects of the FCC's rules, such as the need for transparency, the prohibition on blocking of lawful content, and the right to exercise reasonable network management, the CRA would bluntly remove even these consensus measures. [Footnote 24: See CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg.] In order to address this problem, Democratic committee members attempted to amend H.J. Res. 37 to retain these consensus provisions, but these amendments were ruled out of order. By way of example, during subcommittee and full committee markup of H.J. Res. 37, Rep. Doyle attempted to introduce an amendment that would preserve the FCC's so-called `no blocking rule'--which simply states that fixed broadband providers may not block lawful content, applications, services or non-harmful devices and that mobile broadband may not block lawful websites or block applications that compete with their voice or video telephony services. No blocking of lawful content has been a common practice of broadband providers for years. Indeed, as early as 2004, then-FCC Chairman Michael Powell gave a speech in which he outlined four `Net freedoms. The first freedom was that consumers should have access to their choice of legal content. Chairman Powell stated at the time that `consumers have come to expect to be able to go where they want on high-speed connections, and those who have migrated from dial-up would presumably object to paying a premium for broadband if certain content were blocked. 25 [Footnote] The principle was reaffirmed by FCC's 2005 Internet Policy Statement and incorporated into the Communications Opportunity, Promotion, and Enhancement Act of 2006 introduced by then-Chairman Joe Barton. 26 [Footnote] [Footnote 25: Federal Communications Commission, Remarks as Prepared for Delivery by Chairman Michael K. Powell at the Silicon Flatirons Symposium (Feb. 8, 2004).] [Footnote 26: H.R. 5252, 109th Cong. (2006)] Another provision of the Open Internet Order that has enjoyed broad support from stakeholders is the rule pertaining to transparency. During Committee markup, Rep. Matsui attempted to offer an amendment that would preserve the portion of the Open Internet rule imposing a transparency requirement on broadband providers so that consumers and developers can make informed choices. The transparency rule requires broadband providers to disclose their network management practices, performance characteristics and terms and conditions of their broadband service to consumers. This rule is critical to promoting our Internet economy because in order to maximize Internet usage, consumers must have the information necessary to make informed choices regarding the types and use of broadband service they purchase. Transparency also generates trust, which in turn increases consumer confidence in broadband provider practices, thereby encouraging adoption. Thus a transparency requirement creates a so-called `virtuous cycle' as increased adoption leads to greater investment in broadband infrastructure. A transparency rule will also help third parties like edge providers, high-tech companies, and venture capitalists make informed decisions on when and how to embark on innovative projects and investments. Through disclosure of necessary technical requirements, new and improved online content, applications, services, and devices will be created. During the Subcommittee's legislative hearing on H.J. Res. 37, all six witnesses testifying before the subcommittee--including two witnesses that support the Resolution expressed support for the transparency rule adopted by the FCC. Yet Rep. Matsui's amendment was ruled out of order. As a result, H.J. Res. 37 would eliminate these common sense provisions. A Resolution of Disapproval Under the CRA Is Not an Appropriate Tool In This Instance In the 15 years since the Congessional Review Act has been in place, Congress has used it just once to invalidate an agency rule. 27 [Footnote] Although there may be situations in which the CRA is appropriate, Committee Democrats objected to the use of the CRA in this instance because it is an extraordinary step that runs contrary to the Committee's tradition of open debate. Democrats urged consideration of this issue under the standard process that includes debate and votes on amendments. 28 [Footnote] [Footnote 27: In March 2001, President Bush signed into law a repeal of Clinton Administration regulations that set new workplace ergonomics rules to combat repetitive stress injuries.] [Footnote 28: The majority originally planned to proceed directly to a subcommittee markup of H.J. Res. 37. In response to a request from Ranking Members Waxman and Eshoo, however, the majority agreed to hold a legislative hearing to examine the implications of H.J. Res 37 and to hear from other stakeholders about this topic.] On March 7, 2010, Subcommittee Democrats wrote to Chairman Upton and Subcommittee Chairman Walden objecting to the process for consideration of H.J. Res. 37. The letter, which was signed by every Democratic member of the Subcommittee, stated that by not allowing votes on any amendments, the majority would be departing from the Commitee's tradition of transparency and depriving members of their right to offer amendments. 29 [Footnote] [Footnote 29: Letter from Ranking Member Waxman et al., to Chairman Upton and Walden (Mar. 7, 2011) (online at http://democrats.energycommerce.house.gov/sites/default/files/documents/Upton.Walden, HJRes.37.2011.3.pdf).] During Committee markup of H.J. Res. 37, every amendment offered was ruled out of order on germaneness grounds. The Energy and Commerce Committee has traditionally managed germaneness objections differently. Typically, such objections have been raised because either (1) an amendment is not relevant to the subject of the measure; or (2) the amendment is outside the scope of the Committee's jurisdiction. Neither of those circumstances applied to the amendments members sought to offer at the Subcommittee and full Committee markups. It is within the Committee's jurisdiction to review and develop communications policy. And the amendments proposed by members focused squarely on the subject of the FCC's Open Internet rule. Accordingly, the only basis for Chairman Walden's and Chairman Upton's rulings to uphold the point of order was that the amendments did not conform to the CRA. Although the CRA provides the basis for denying debate and votes on amendments, having this power does not make using it right. Instead, the majority should have brought before the Committee a regular H.R. bill that overrules the Commission's Order. Taking such an approach would not have precluded members from offering and debating amendments. 30 [Footnote] [Footnote 30: Some proponents of H.J. Res. 37 suggest that it is inconsistent for several Committee Democrats that have cosponsored CRA resolutions in the past to complain about the process being utilized in this instance. This is a superficial analysis. Although use of the CRA allows for expedited procedures in the Senate, using the CRA does not affect timing of such a measure in the House. Moreover, cosponsoring a Resolution of Disapproval in a past Congress does not in any way suggest that members cannot object to the use of the CRA in different circumstances.] The Majority's Focus on the FCC's Open Internet Rules Has Prevented the Committee From Focusing on Critical Issues At this critical juncture in our economic recovery, Congress should be focused on the many pressing issues in the communications and technology arena. Even if this Resolution of Disapproval passes the House of Representatives, it still must get through the Senate. After that, it will be met with a Presidential veto. The majority knows this, but is still willing to waste precious legislative time on something that has virtually no chance of success. Furthermore, this issue is squarely before the courts. Verizon has already filed an appeal in the D.C. Circuit challenging the Open Internet Order. The courts will review the legal questions raised in the appeal and will decide this matter. If Republicans want Congress to determine the proper role for the FCC, we believe we should work on a legislative alternative to the FCC's approach before we simply eliminate FCC's ability to adopt basic, common sense rules to protect consumers in the broadband market. The Committee
should instead be focused on efforts to boost our economy by making more
spectrum available for next-generation wireless broadband services,
ensuring the construction of a nationwide broadband network for public
safety, and updating the Universal Service Fund to provide targeted
support to communities without broadband. Unfortunately, H.J. Res. 37 is a
demonstration of misplaced priorities and ideological agenda.
All Rights Reserved. © 2011 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
|
|
||||||||||||||
