Senate Fails to Overturn the FCC’s Net Neutrality Rules

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New “open Internet” regulations survive congressional challenge.

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Congress has failed to overturn the net neutrality rules adopted last December by the Federal Communications Commission (FCC).  In a vote last week, the Senate voted 52-46 to reject a resolution opposing the rules, sponsored by Senator Kay Bailey Hutchinson (R-TX).

The Senate rejection followed the passage, by a vote of 240-179, of a parallel House resolution of disapproval, which was sponsored by Representative Greg Walden (R-OR), the Chair of the House Energy and Commerce Committee’s Subcommittee on Communications and Technology.

Both resolutions were an attempt to overturn the FCC rules under the authority of the Congressional Review Act, which creates a fast-track procedure for Congress to review certain major federal agency rules and to overturn them by passage of a joint resolution, signed by the President.

Before the Senate vote, the White House Office of Management and Budget announced that “if the President is presented with [a resolution of congressional disapproval], which would not safeguard the free and open Internet, his senior advisers would recommend that he veto the Resolution.”

The FCC’s net neutrality rules will bar Internet infrastructure providers from discriminating unreasonably against disfavored Internet traffic.  The rules are based on the “network design principle” that Internet infrastructure providers should not have authority to choose to provide easier or faster access to any particular content, sites, or platforms.

Even at the FCC, the rulemaking was controversial: the two Republican FCC Commissioners, Meredith Attwell Baker and Robert McDowell, voted against it and dissented vigorously. Infrastructure providers, such as Comcast and Verizon, also strongly oppose the FCC rules.

In ongoing litigation, Verizon is challenging the net neutrality rules in the DC Circuit Court.  When it filed its appeal, Verizon released a statement that the FCC’s “assertion of authority is inconsistent with the statute [under which the rules were issued] and will create uncertainty for the communications industry, innovators, investors and consumers.”

The FCC net neutrality rules are currently due to come into effect on November 20, 2011.

Abigail Slater

Abigail Slater is an antitrust attorney by the Federal Trade Commission (FTC) in Washington D.C.