By Paul Barbagallo
President Obama is threatening to veto a Senate resolution (S.J. Res. 6) that would repeal the Federal Communications Commission's rules for net neutrality.
As expected, the White House issued a statement of administrative policy explaining the president's position on the resolution, a day before the Senate will open debate on S.J. Res. 6. Debate on the resolution was scheduled for Nov. 9 and vote Nov. 10.
“If the president is presented with S.J. Res. 6, which would not safeguard the free and open internet, his senior advisers would recommend that he veto the resolution,” the White House said in the statement Nov. 8. “Today more than ever, the open internet is essential to job creation, economic growth, and global competitiveness. The United States leads the world in the development of new internet-based services and applications. An important element of this leadership is that the open internet enables entrepreneurs to create new services without fear of undue discrimination by network providers.”
The White House said the final FCC rules, adopted on a party-line vote nearly a year ago, reflect a “constructive effort” to find consensus among the many competing interests.
Disapproval now, the administration said, would “cast uncertainty over innovative new businesses that are a critical part of the nation's economic recovery.”
The release of the statement did not come as much of a surprise. Obama released a similar statement earlier this year when the Republican-controlled House was poised to approve an identical measure nullifying the FCC's rules.
In addition, Obama made net neutrality a central component of his technology platform during his 2008 presidential campaign. FCC Chairman Julius Genachowski helped draft that platform as a campaign aide.
Regardless of the president's veto threat, the resolution is not likely to pass the Senate. The House vote in April fell sharply along party lines, 240-179.
So far, the resolution has garnered 42 Republican co-sponsors. No Democrats have signed on.
In bringing the resolution to a vote on the Senate floor, Republican leaders will invoke a seldom-used and little-known statute, the Congressional Review Act of 1996, through which Congress can rescind any agency rule by voting up or down. Unlike regular legislation, a Congressional Review Act “resolution of disapproval” is not subject to amendments and cannot be filibustered in the Senate. It requires presidential approval, however.
The act has been used successfully only once before, in 2001, to repeal a Department of Labor rule setting ergonomic standards for workplaces. That marked the first time Congress had considered a CRA resolution since the statute's passage in 1996, when it was included as part of a package of bills benefiting small businesses, the Small Business Regulatory Enforcement Fairness Act.
A CRA resolution only requires the support of 30 senators to bring it to the floor.
The champions of the resolution, Senate Republican Leader Mitch McConnell (R-Ky.) and Senate Commerce ranking member Kay Bailey Hutchison (R-Texas), contend that the FCC can point to only a few instances of blocking or degrading of web traffic, practices the rules are designed to prevent: Madison River Telephone Co.'s blocking of voice-over-internet-protocol services, Verizon Wireless' blocking of political text messages, Telus Corp.'s blocking of a website operated by its opponent in a labor dispute, and Comcast Corp.'s throttling of BitTorrent traffic.
No matter the outcome of the Senate's vote, the fight over net neutrality will continue in the courts. Verizon Communications Inc. has petitioned the U.S. Court of Appeals for the District of Columbia Circuit to overturn the order (191 TCM, 10/3/11).