Now that the Federal Communications Commission (FCC) has published its final rule to reestablish net neutrality, it is up to Congress to take action to prevent the order from imposing the heavy hand of government on the internet.  The Safeguarding and Securing the Open Internet; Restoring Internet Freedom (SSOI/RIF) Ruling and Order was included in the May 22, 2024, Federal Register.  The SSOI/RIF becomes effective on July 22, 2024. 

Adopted by a 3-2 party line vote at the FCC, the SSOI/RIF resurrects the Obama-Biden administration’s Open Internet Order (OIO), which imposed Title II common carrier provisions of the Telecommunications Act of 1934 on the internet.  The OIO was overturned by the Restoring Internet Freedom Order in 2017, which regulated the internet as an information service under Title I of the 1934 Act, also by a 3-2 majority vote at the FCC.  Court cases will be filed to challenge the SSOI/RIF, and there are several good arguments that make them likely to succeed.  But the most decisive way to stop the back and forth of Title I versus Title II rulings at the FCC is for Congress to not only overturn the new rules but also take back from unelected bureaucrats its congressional authority and create final and unchallengeable certainty for how the internet should be regulated.

To do this, Congress needs to start by introducing and enacting a resolution through the Congressional Review Act (CRA), which was created by part of the Small Business Regulation Enforcement Fairness Act of 1996 (Public Law No. 104-121).  According to the Congressional Research Service, because the SSOI/RIF is considered a “major rule” under the CRA, the FCC must submit the final rule to both chambers of Congress, and once received, a joint resolution of disapproval must be filed during a “60-days-of-continuious-session period beginning on the day Congress receives the rule.” 

If the CRA joint resolution is enacted by both chambers and signed into law by President Biden (which is highly unlikely) the rule will be treated as if it never went into effect if it had already done so, and if it had not taken effect then it will not take effect.  The CRA states that a federal agency cannot “reissue in substantially the same form,” and “a new rule that is substantially the same … may not be issued, unless the reissue or new rule is specifically authorized by a law enacted after the date of the joint resolution.”

Governing the internet should not depend on which party is in charge of the executive branch.  This uncertainty has engendered a pendulum swing that is never ending, adversely impacting providers and consumers alike.  It also creates a level of uncertainty for states as they move forward with their plans for broadband deployment leveraging the Broadband Equity, Access, and Deployment (BEAD) funds made available to connect unserved communities across the country.

There had been a time when the FCC was a truly independent agency that did what was best for the nation rather than subject itself to the whims of political pressure from the White House.  However, those days ended in 2014, when the Obama-Biden administration in search of a solution to a problem that didn’t exist, told the FCC chairman exactly how the internet was going to be regulated. 

The net neutrality regulations, on top of the digital discrimination requirements, are a threat to meeting the goals of the $42.45 billion BEAD program, making it harder to close the digital divide.  It is now time for Congress to put the FCC back on the right track and exercise its authority in determining how the internet should be regulated.