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The Coming GOP War On the Open Internet -- Not a Drinking Game

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In their never-ending quest to make the Internet safe for Verizon, AT&T and the newly minted Comcast-NBC colossus, Republican members of the House and Senate are gearing up for yet another showdown to take out the Net Neutrality rules approved by the Federal Communications Commission (FCC) last Dec. 21.

The timing will be slightly awkward. Verizon, on the verge of selling the iPhone, announced it would start slowing down its data service for heavy users. The timing is just a coincidence, the company said. Also in the coincidental department, Verizon announced it would spend $3.62 billion buying back 100 million shares of stock. Imagine if all that money were put to use for something constructive, say, building out the wireless network to handle the iPhone-generated data traffic, instead of being used simply to jack up the stock price and making big shareholders richer.

The action will start in the House on Feb. 15, with a hearing in the House Subcommittee on Intellectual Property, Competition and the Internet, and the next day, the House Communications and Technology Subcommittee (part of the Energy and Commerce Committee) will stage its own bit of theater. Each hearing will feature some, or all, of the FCC Commissioners.

As a preliminary matter, it's a wonder that legislators are devoting any time at all to the Net Neutrality rules, which don't cover half of the Internet universe (the wireless side) and are extremely vague on the wired connection part of the world. But attack they will, using all of the tried, true and false arguments about the nature of telecommunications regulation.

It's not clear whether C-SPAN will show the hearings, either live or in a rebroadcast in the evening. It would be very tempting for those watching the proceedings to take part in a drinking game: one drink when any legislator uses the words, "exceeded authority," or "job-killing regulations," two drinks when a legislator babbles on about "government takeover," or "government control" of the Internet.

Don't do it. Don't even think about it, particularly if the hearings are broadcast live in the morning. For that matter, don't even do it if the hearings are on at night. That's because anyone playing will likely be wasted in the first 20 minutes of each hearing. One could argue that the hearings will make more sense that way, and perhaps that's so. But placing one's health in danger just so a hearing or two will make a little more sense hardly seems like a fair tradeoff. The strain on one's system of two consecutive days of heavy drinking caused by rhetorical and nonsensical talking points from those who could care less about things like consumers, competition, lower prices and innovation would make the drinking seem ill-considered. Save it for something worthwhile, perhaps when Washington Redskins owner Dan Snyder is awarded the Sports Jerk of the Year award.

But we digress. The hearings will be the first act in the Republican plan to eliminate the possibility of any FCC consumer protections for Internet users. The second act will be a resolution of disapproval of the FCC rules. This method was created in Congressional Review Act (CRA), one of the items in the Contract With America enacted in 1996 by the Republican-controlled Congress and signed by President Bill Clinton. My colleague Ernie Falcon has described it as a "nuclear option." It is rare that the CRA is used. In a 2008 study, the Congressional Research Service found 47 resolutions of disapproval had been introduced at a time when 47,540 major and non-major rules became effective. Of the 47 that were introduced, only one passed, nullifying an ergonomics rule from the Occupational Health and Safety Administration in March, 2001.

The law provides step-by-step instructions for how the process takes place, including the wording of a resolution of disapproval: "That Congress disapproves the rule submitted by the XX relating to XX, and such rule shall have no force or effect." And that's not all.

The law also provides ways to keep those pesky government agencies from actually trying to do their jobs by doing a work-around of a Congressional resolution by saying that a rule that's the subject of Congressional action "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." No tweaks to the rule allowed.

There is a conundrum for those of us who profoundly disagreed with the FCC's action from the standpoint that the agency could have done a lot better to protect consumers and online competitors simply by reasserting the jurisdiction over telecommunications connections to the Internet that the agency gave away during the Bush years. Is it worth supporting such an ineffective rule that gave away half of the store to AT&T, ignoring the case made by public interest groups and Internet companies?

Some of us would like the answer to be, "no, it's not worth it," but given the circumstances, we have to support the FCC. That's because at some point in the future, another set of FCC commissioners might want to pass some rules that actually guarantee a free and open Internet for the entire Internet. Lord have mercy, we know this FCC under Chairman Julius Genachowski won't touch Net Neutrality, or an open Internet, again from the broad policy level. It might have to deal with individual complaints under the existing rule, but that's another matter entirely.

The resolution of disapproval will win in the Republican-majority House, although a strong showing from open Internet supporters would be helpful. My day-job employer, Public Knowledge, next week will start a campaign asking anyone interested in preserving the open Internet to call in on Feb. 17 to their members of Congress asking them to vote against the resolution.

Given the Administration support for an open Internet, it's likely to be voted down in the Senate. But again, a strong showing by supporters of a free and open Internet will be crucial. If the money talks and the resolution does pass both House and Senate, the question is whether President Obama would veto it. Sad to say, one shouldn't assume that he would. It's likely, but one shouldn't bet the house on it.

Even the defeat of the resolution if disapproval won't end the proceedings. There is still normal legislation to accomplish the same purpose that can be brought up, and there will be even more hearings to badger the FCC commissioners. So, on second thought, ice up the kegs.

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