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Bolstering Legal Challenges

Republicans Eye Move on Longshot Hill Bid to Undo FCC's Digital Discrimination Rules

Congressional Republican leaders are determined to advance a Congressional Review Act resolution of disapproval to undo the FCC’s digital discrimination order (H.J.Res. 107) despite widespread acknowledgment the measure faces long odds of making it through the majority-Democratic Senate and an all-but-certain veto from President Joe Biden. GOP leaders’ intent in pursuing H.J.Res. 107 appears to be to bolster legal challenges of the digital discrimination order, officials and lobbyists told us. House Communications Subcommittee member Rep. Buddy Carter of Georgia and more than 60 other Republicans filed the measure in late January (see 2401310003).

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It’s up to” House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., when the panel will move on H.J.Res. 107, but a markup of the measure is something “we want to get on the calendar” as soon as possible, House Communications Chairman Bob Latta, R-Ohio, told us before the chamber began a recess set to end Wednesday. Rodgers confirmed she wants to move H.J.Res. 107 through House Commerce soon but didn’t provide a clear timeline. Congress would need to pass H.J.Res. 107 within 60 legislative days of the digital discrimination rules’ Jan. 22 publication in the Federal Register (see 2401190051) for the measure to undo the order.

House Commerce Republican leaders have “talked about” moving on H.J.Res. 107, “but I’m going to stop short of saying we’ve got a commitment” to mark it up, Carter told us. “I do think it has a good chance of passing” on the House floor given strong GOP opposition to the digital discrimination rules, which the FCC adopted over opposition from Republican Commissioners Brendan Carr and Nathan Simington (see 2311150040). GOP lawmakers have also eyed pursuing a CRA resolution to undo the FCC’s December adoption of data breach notification rules opponents claim are substantially similar to parts of the commission's 2016 ISP privacy order, which Congress rescinded the following year (see 2312200001).

Senate Commerce Committee GOP leaders are also eyeing joining in with a companion to H.J.Res. 107, but in interviews before the chamber left on recess two weeks ago wouldn't commit to pursuing it. The Senate gaveled back in Monday afternoon. “My staff may well be looking at” a Senate version of the CRA measure, said panel ranking member Ted Cruz, R-Texas. “The FCC’s policy is wrong and contrary” to what Congress directed it to do in the 2021 Infrastructure Investment and Jobs Act, “so I’m glad for any efforts to rein it in.”

Senate Hangs Back

Senate Communications Subcommittee ranking member John Thune, R-S.D., told us he’s open to “anything that we can do to roll back some of the crazy stuff at the FCC” since Democrats gained a majority on the commission in September. A CRA resolution “seems like the best way to do it,” he said. Thune, Cruz and other Republican senators urged the agency in November to reconsider the then-draft rules (see 2311130059).

Senate Commerce Chair Maria Cantwell of Washington and other Democratic leaders emphasized H.J.Res. 107 is unlikely to fully clear Congress while that party still holds a majority in the upper chamber. There’s no chance for the measure “with where the numbers are” in the Senate right now, but it’s not surprising Republicans want to try to undo the digital discrimination rules, Cantwell told us. She indicated she would be unlikely to bring up the resolution for a panel vote. Senate Republicans could bypass Commerce if 30 senators signed on to a motion to discharge the panel from jurisdiction over H.J.Res. 107, which would bring the measure to the floor for a vote. Senate Democrats used a discharge petition in 2018 to force a floor vote on a CRA resolution to undo the FCC’s rescission of its 2015 net neutrality rules (see 1805090065).

I would not support” a H.J.Res. 107 equivalent on the Senate side and don’t see a future for it in the chamber, said Senate Communications Chairman Ben Ray Lujan, D-N.M. “I’ve been very public about my concerns” about attempts to “create more loopholes” in the digital discrimination rules. “I’m not sure why” Republicans who voted for IIJA in 2021 “would then try to undo” the rules the law directed the FCC to write, he said.

Republicans have repeatedly “been doing things like” H.J.Res. 107 throughout this Congress, with only limited success in enacting CRA resolutions because the Senate voted them down or Biden vetoed most of those that cleared both chambers, said House Communications ranking member Doris Matsui, D-Calif. “It never makes much sense.” She expects House Commerce Democrats to uniformly oppose H.J.Res. 107 if it comes up in a committee markup session.

'Expectations Low'

Latta and other House Republicans acknowledge H.J.Res. 107 faces long odds of making it through both chambers but believe it’s important to advance the measure to send a message to the FCC. “A lot of times one body will say they’re not going to do something and they end up doing it anyway," he said. "We’ve seen” the Biden administration in the past “say they’re not going to negotiate with Congress but then they do.”

We haven’t had a tremendous amount of luck with CRAs this Congress, but that’s not saying much considering CRAs historically don’t have a whole lot of luck,” said House Communications member Rep. Kat Cammack, R-Fla., another of H.J.Res. 107’s original co-sponsors. “I am keeping my expectations low, but telecom policy matters are a bit less controversial, and we could see an opportunity” for bipartisan cooperation.

Republicans “are very much interested in” passing H.J.Res. 107 at least through the House, but “they’re making sure they have the votes” within the GOP caucus to clear it through the chamber given the party has a very thin majority over Democrats, said James Erwin, executive director of Americans for Tax Reform’s Digital Liberty. ATR President Grover Norquist was among officials from 24 groups that urged Congress in December to undo the digital discrimination order (see 2312140049).

H.J.Res. 107’s dim Senate prospects make it more a “messaging opportunity” that will allow Republicans to “elevate the issue” as legal challenges to the FCC’s action goes through the courts, Erwin told us. Plaintiffs in legal challenges to the digital discrimination order will likely point to House debate and passage of H.J.Res. 107 as evidence of “Congress’ disapproval of how the FCC implemented” the IIJA mandate. Opponents of the FCC’s order filed challenges in at least five different federal appellate court circuits.

Modern conservatives" who say that passing something through one chamber “is somehow a valid indicator of congressional intent or should affect the outcome” of legal challenges are “flat wrong on plain legal terms,” said Free Press Vice President-Policy Matt Wood. “I can understand ... wanting to score a political victory, but this would be only that. I don’t see what relevance it would have in actual litigation.” It wouldn’t be surprising if House GOP leaders move forward on H.J.Res. 107 “because when they’re not busy fighting each other, they’re fighting against phantoms” like claims the FCC overstepped congressional intent in crafting the digital discrimination rules, he said.