Democrats Hold Line in Senate, Defeat GOP Net Neutrality Attack
The legislative campaign against the FCC net neutrality order crumbled Thursday on Capitol Hill, as Senate Democrats rejected Republicans’ Congressional Review Act joint resolution of disapproval. The Senate voted 46-52 on a motion to proceed to SJ Res 6, with no Democrats voting for the joint resolution of disapproval. That means a vote won’t be held on SJ Res 6 itself. The FCC order takes effect Nov. 20. “The only thing [Republicans] can do at this point is allow the courts to handle” the issue, a House aide said.
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All Republican senators present voted yes, but they needed Democratic votes to succeed and they didn’t get them. Sens. John McCain, R-Ariz., and Daniel Inouye, D-Hawaii, were not present. The GOP-controlled House had passed its own joint resolution (HR Res 37) in April. The Congressional Review Act procedure had appeared to be Republicans’ best shot at blocking the rules, since it required only simple majorities in the House and Senate and is protected against a Senate filibuster. While other bills exist in the House to rein in FCC authority over the Internet, they would not have the same protections and therefore would be tougher to pass in the Senate. Congress could also still try to overturn net neutrality rules from the FCC though an appropriations bill.
While Democratic resistance was expected (CD Nov 10 p1), the positions of more-moderate party members had been unclear. Republicans failed to win over Sen. Ben Nelson, D-Neb., among other swing votes. “We talked to various providers and users back in Nebraska, and we came to the conclusion that [no] was the best vote,” Nelson told us after the vote.
The GOP’s best option is to try to defund the FCC in appropriations legislation, said Stifel Nicolaus analyst David Kaut. The FY2012 Financial Services bill in the House includes language banning the FCC from using government funds to carry out the agency’s December net neutrality order. That bill was passed out of committee and awaits a floor vote. If passed by the House, net neutrality would become just another “bargaining chip” in budget negotiations, Kaut said. However, because Democrats control the Senate and the White House, House Republicans would likely have to trade a lot to keep the defunding language in the final bill, and Kaut doubts net neutrality is “that high of a priority” for Republicans, he said.
Net neutrality foes should have stopped fighting long ago, Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., told reporters. “We couldn’t identify any group that was pushing” the resolution of disapproval, he said. Maybe the tea party, he said. In a statement, Senate Communications Subcommittee Chairman John Kerry, D-Mass., urged the FCC order’s supporters to “keep up the fight because we know this isn’t the last we've heard of the assault on net neutrality.” Kerry called Thursday’s vote “a victory for innovation, consumers, and common sense."
Anti-tax groups protested the decision, while Free Press and other public interest groups applauded the Senate vote. At our deadline, ISPs hadn’t said a word.
Verizon and MetroPCS’s challenges to the net neutrality order, meanwhile continue to steam forward in the U.S. Court of Appeals for the D.C. Circuit. The FCC last week asked the court to dismiss the MetroPCS case on procedural grounds. The FCC had earlier made a similar filing against Verizon. “MetroPCS filed its notice of appeal pursuant to 47 U.S.C. [Section] 402(b)(5), which grants this Court exclusive jurisdiction over FCC decisions that modify individual radio licenses,” the FCC said. “Because the challenged decision did not modify radio licenses within the meaning of Section 402(b)(5), jurisdiction does not lie under that provision."
Also last week, Verizon filed with the court a statement on the issues it intends to raise with the court. Verizon said the case “directly responds to this Court’s decision in Comcast Corp. v. FCC,” a case which found that the commission did not have the authority it claimed to require ISPs to keep their networks open to all forms of content. Verizon said its case raises four key points: “Whether the Order is in excess of the FCC’s statutory authority; Whether the Order is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; Whether the Order is contrary to constitutional right; and Whether the Order is otherwise contrary to law.”
Media Access Project Senior Vice President Andrew Schwartzman, a supporter of the net neutrality rules, said he expects the case to proceed slowly, with briefs likely to be filed in February or March, oral argument in the spring and a decision by the end of July.