As I argued in a recent op-ed, while the FCC’s decision to reverse the Obama Administration’s Title II classification of broadband was necessary, I am also concerned that it may be short lived. As with any regulatory decision, opponents have recourse to the courts – and litigation in this case is a certainty. Likewise, regulatory action taken along party lines is also subject to reversal the next time political power at the FCC reverts to democratic control.
In addition, in this case there is another outlet that opponents will pursue – reversal of the FCC’s action pursuant to the Congressional Review Act (“CRA”). This little known and rarely used legislative tool permits any Member of Congress to petition a vote on an action by an Independent Agency. Unlike a purely Executive Branch agency like a Cabinet Department, the FCC is an Administrative Agency that draws its authority from the Congress instead of the Executive. As a consequence, with a simple majority in each chamber of Congress any FCC action can be overturned. While it is unlikely that a Republican-controlled Congress would vote to repeal a Republican regulatory decision – and the President would also have to sign the legislation – it is not inconceivable in this environment.
Title II advocates have been enormously successful in equating Title II with Net Neutrality in the minds of the public. And the public overwhelmingly supports the general concept of Net Neutrality, even if specific details are less well understood.
Given the risk that the Pai-Commission’s Title II repeal could itself be reversed, either through the Courts, the Congress, or a new Commission, Congress should take this opportunity to start crafting a comprehensive Net Neutrality solution that both protects consumers and gives innovators and industry certainty.