Adapted from an article by Andrew Wyrich, Jan 2, 2018 | Original Daily Dot article here.
With the (temporary) reopening of the Federal Government, the Federal Communications Commission (FCC) opens up on Mon Jan 28, 2019.
It is, therefore, timely to revisit FCC Chairman Ajit Pai's Jan 2 blast of an effort in Congress to overturn the agency’s controversial decision to rescind net neutrality rules — Pai released his statement on the last official day of the 115th Congress, the day before the FCC closed for the government shutdown.
Pai’s statement was criticized by net neutrality advocates, some of whom predict that the FCC will be under more scrutiny from Congress now that Democrats have control of the House of Representatives.
Pai applauded the end of Congressional members' attempt to use the Congressional Review Act (CRA) to overturn the FCC’s net neutrality vote. The CRA gives Congress the ability to overturn decisions made by federal agencies within a certain time frame.
A CRA motion isn’t technically a bill, so it plays by slightly different rules, which you can read at 5 U.S.C. 801-08. The CRA was designed to allow a majority of members to pass a Resolution of Disapproval, even over the objections of the leadership, and on a bare majority (so it circumvents the filibuster).
When an agency has a rulemaking and creates a rule, it must send a report to Congress and it must publish the rule in the Federal Register.
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Congress then has 60 legislative days (meaning days they are in session) after the targeted item is printed in the Federal Register.
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For example, FCC 18-133, which combines FCC Dockets 17-79 and 17-84 in a Declaratory Ruling and Third Report And Order was printed in the Federal Register on Oct 15, 2018.
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Counting Days in Session from Oct 15, 2018 to Jan 25, 2019, one can count that FCC 18-133 has clocked 51 legislative days. That leaves nine more legislative days (until Feb 7, 2019) for a Senate-initiated CRA vote to disapprove FCC 18-133.
If the resolution passes, and the President signs it, then the rulemaking is made null and void. Additionally, the agency cannot adopt a “substantially similar” rule unless Congress explicitly authorizes the FCC to adopt a substantially similar rule in a subsequent statute.
The Net Neutrality CRA was passed by Senate last summer by a 52-47 vote: 49 Democrats and 3 Republicans — Sen. Collins (R-ME), Sen. Murkowski (R-AK) and Sen Kennedy (R-LA). The CRA then stalled in the House of Representatives. The CRA was championed in the Senate by Sen. Edward Markey (D-Mass.), who said that a free and open internet is a right, not a privilege.
“Since the FCC’s decision to repeal net neutrality, we have witnessed an historic movement emerge to protect that right and it continues to build. With only one more vote needed for my CRA resolution to undo the Trump administration’s political decision on net neutrality, Republicans have a choice — stand with the overwhelming number of Americans who support net neutrality or side with the corporate interests who only care about their bottom line.”
Rep. Mike Doyle (D-PA), a co-sponsor of the House CRA, lauded the efforts of internet activists pushing the issue:
“Americans overwhelmingly support net neutrality. If there’s enough grassroots activism on net neutrality, we have a real shot at getting this thing out of the House.”
The House version needed a simple majority of signatures on a “discharge petition” to force a full vote. Ultimately, only 182 lawmakers signed the petition, leaving it 36 votes shy of reaching the simple majority. If it had been successful, the president would have also needed to sign it. Only one Republican joined the effort in the House.
The effort did not get the needed number of signatures before its deadline as a new roster of lawmakers takes over in the 116th Congress. The CRA cannot be revived by a Democratic-controlled House.
Sarah Morris, director of open internet policy at New America’s Open Technology Institute, said that Americans would hold their elected representatives accountable — and they did. She said shortly after the Senate CRA vote:
“In the months since the FCC voted to repeal the net neutrality rules, the American people have raised their voices to tell their representatives in Congress to save those online protections, and have sent over 16 million emails and over 1 million calls to Congress. As this measure heads to the House, it would be prudent for members to take note of this sustained outcry and vote to preserve net neutrality.”
Evan Greer, deputy director of internet rights group Fight for the Future added:
“Dozens of anti-net neutrality members of Congress have already lost their jobs, and supporters of the open internet will soon chair the key committees that provide oversight for the FCC. Ajit Pai won’t be laughing long when he has finally has to answer questions like why his agency lied to the media about a [distributed denial-of-service] attack that never happened.”