House To Vote On Anti-Net Neutrality Measure; Administration Threatens Veto

WASHINGTON, April 5, 2011 – The House of Representatives is anticipated to hold a floor debate and vote this week on a measure that would put the kibosh on net neutrality rules passed by the Federal Communications Commission late last year, but the White House has said that it would likely veto such a measure should it come across the President’s desk.

House Joint Resolution 37, which is a Resolution of Disapproval, states simply that Congress disapproves of the Open Internet Order issued by the Commission late last year and that the rules shall have no effect.

A Resolution of Disapproval is a seldom-used Congressional maneuver under the Congressional Review Act (CRA) that nullifies an action by an administrative agency – in this case, the FCC.  To take effect, both the House and Senate must pass the measure by a simple majority and the President must sign off on the action.

The Order, which the Commission passed by a 3-2 vote in December of last year, provides three guidelines by which Internet Service Providers (ISPs) must abide in their offerings to consumers.  First, ISPs must provide services in a transparent manner by disclosing their network management practices and performance characteristics.  Second, network providers must not block lawful content from their customers, and third, providers may not unreasonably discriminate by prioritizing certain network traffic without sufficient reason.

House Republicans, led by Rep. Fred Upton (R-MI), Chair of the Energy and Commerce Committee, and Rep. Greg Walden (R-OR), Chair of the Communications and Technology Subcommittee, have carried a campaign against the Order, calling it unnecessary and an overreach of the FCC’s authority.

“How carriers manage their networks should be determined by engineers, entrepreneurs and consumers in the marketplace, not by as few as three unelected commissioners,” said Rep. Walden during his prepared remarks in front of the House Rules Committee during a hearing on the measure Monday evening.

Energy and Commerce Republicans have closed ranks on the issue and rallied around the assertion that the Order creates uncertainty and disincentives for companies to invest in the Internet economy. Rep. Walden, however, appeared uncharacteristically on his heels when defending that point during questioning by Rep. Jared Polis (D-CO) at Monday’s hearing.

While Rep. Walden has frequently used the failure of the FCC to conduct a market study to justify its net neutrality rules as evidence that the action is economically unfounded, he seemed unable to offer a response when Rep. Polis presented independent market analyses indicating that the Order created more certainty – not less – in the marketplace.  Instead, Rep. Walden deferred back to ambiguities in the FCC’s grant of authority under the Telecommunications Act to regulate the Internet.

Meanwhile, Democrats have decried the campaign against net neutrality as merely a front for an assault on government regulation generally.

“It’s become increasingly clear that this isn’t about acting in the interest of American innovation, jobs, or consumers,” said Rep. Anna Eshoo, ranking member of the Subcommittee on Communications and Technology, during her prepared remarks Wednesday. “Quite simply, this bill is another ideological assault on a government agency and their ability to provide basic consumer protections.”

Following the representatives’ testimonies, the Rules Committee voted to close the measure to amendments and passed it to the House floor for debate. The resolution is expected to pass in the House, though it will likely arrive to a chillier reception in the Democratic-controlled Senate.

Moreover, the administration, which has long supported net neutrality, has indicated that it “strongly opposes” the measure and that it faces a veto should it reach President Barack Obama’s desk.

“Disapproval of the rule would threaten those values and raise questions as to whether innovation on the Internet will be allowed to flourish, consumers will be protected from abuses, and the democratic spirit of the Internet will remain intact,” said the administration though the statement.  “If the President is presented with a Resolution of Disapproval that would not safeguard the free and open Internet, his senior advisers would recommend that he veto the Resolution.”