Lawless Net Neutrality vs. the “Resolution of Disapproval”

Today, the U.S. Senate takes up S.J.Res.6, the FCC Internet and Broadband Resolution of Disapproval, for up to four hours of debate.

The controversy is over whether or not the Senate will vote to stop the Federal Communications Commission from doing what Congress never authorized it to do in the first place, namely, to implement its December 2010 order to regulate traffic control practices on the Internet.

The House already passed a resolution of disapproval back on tax day; back then Rep. Marsha Blackburn (R-TN) led much of the charge and kept the appropriate level of outrage over FCC’s power grab front and center.

We have Sen. Kay Bailey Hutchison (R-TX), Ranking Member of the Commerce, Science and Transportation Committee, to thank for pushing this disapproval resolution forward in the Senate. As Republican leader Sen. Mitch McConnell put it today, net neutrality “is an over-reaching attempt to ‘fix’ the Internet, when the Internet is not broken…According to the FCC’s own data, 93 percent of broadband subscribers are happy with their service.”

Indeed. If Net Neutrality is to be law of the land (and I do not believe it should be for many reasons I detailed years ago), Congress at the very least needs to affirm it, to approve it, not get owned by an FCC that goes around it and steals its cookies.

The very circumstance we find ourselves in, that of the Senate being reduced to spending half a day debating stopping the FCC from doing what it (properly) lacks power to do, is something of an abomination to representative government.

On the even further twisted politics of the matter, Phil Kerpen of Americans for Prosperity just noted in a Fox News oped that:

[T]he net neutrality power grab is taking place despite nearly zero support from Congress, an emphatic federal court decision telling them they have no relevant jurisdiction, and a 2010 election in which all 95 candidates who campaigned on the issue lost. A perfect record of failure.

Meanwhile Larry Downes did a magnificent job in my view in Forbes about the “True Cost of Net Neutrality,” on how mandates needlessly undermine the network infrastructure that we all want.  The policy is not pro-Internet, and it’s not “neutral.”

The ratchet of regulation goes only one way; Agency personnel now do the bulk of the “lawmaking” in this country, without having earned a single vote from you and me. Congress passed and the president signed into law 217 bills last year; Know how many agency regulations–also laws–were finalized? 3,573. Over 140 rules are in the works at FCC now. That’s telecommunications deregulation? This is liberalization? Not quite.

Any agency rule as costly or controversial as a net neutrality mandate should not go into effect until Congress approves it. Net neutrality is one of today’s worst abuses of over-delegation of legislative authority to agencies (or, of agency seizure of such authority, as one may also view the matter).

One approach for solving this is the REINS Act, the “Regulations from the executive in need of scrutiny” bill from Sen. Rand Paul and Rep. Geoff Davis (both Kentucky Republicans), which would require Congress to affirm agencies’ “major” regulations. In government-speak, “major” or “economically significant” means a rule costs $100 million a year, of which there are now between 100 and 200 annually. That’s not too great a task for Congress to take on.

Controversial rules need to be governed by REINS also, since the FCC would never admit to net neutrality being an overly costly major rule. Agencies tend to think their regulations create jobs rather than wipe them out.

So it’s up to the Senate today to govern, not the public, but the federal machinery itself. All 47 Republicans are likely to support the resolution of disapproval; We’ll see what Democrats think of Internet regulation today.