McMorris Rodgers leads 40 lawmakers in opposing FCC’s net neutrality order

U.S. Rep. Cathy McMorris Rodgers (R-WA) last week led a bicameral coalition in calling on the Federal Communications Commission (FCC) to abandon its so-called net neutrality draft order.

However, the FCC on April 25 voted 3-2 to reclassify broadband as a public utility in order to regulate access to the internet.

Rep. McMorris Rodgers and the contingent of 40 lawmakers opposed the draft order in an April 23 letter sent to FCC Chair Jessica Rosenworcel that said it both circumvents the text of the Communications Act of 1934 and would inflict serious damage on the competitive U.S. broadband industry. 

“Rather than proceeding on a course that would assuredly be reversed in court… we ask that you end this proceeding and maintain the existing classification, which is faithful to the law as drafted by Congress,” wrote the lawmakers, who included U.S. Sens. Marsha Blackburn (R-TN) John Thune (R-SD), Roger Wicker (R-MS), Deb Fischer (R-NE), Jerry Moran (R-KS), Todd Young (R-IN), and Shelley Moore Capito (R-WV).

Among the congressmen who signed the letter were U.S. Reps. Bob Latta (R-OH), Michael Burgess (R-TX), Larry Bucshon (R-IN), Buddy Carter (R-GA), John Curtis (R-UT), John Joyce (R-PA), Kelly Armstrong (R-ND), Troy Balderson (R-OH), August Pfluger (R-TX), and Jay Obernolte (R-CA).

The members also argued that the U.S. Supreme Court’s recent jurisprudence on the major questions doctrine confirms that the only body that can authorize public utility regulation of broadband is Congress.  

“Your proposal to reclassify broadband as a telecommunications service does the exact opposite,” wrote the lawmakers. “It would give the commission largely unfettered power to impose (and allow states to impose) rate regulation, tariffing requirements, unbundling obligations, entry and exit regulation, and taxation of broadband — the antithesis of leaving broadband ‘unfettered’ by regulation as the law requires.”

And while Congress has had many opportunities to give the FCC such power, it has never done so in any of its legislative enactments regarding broadband over the past two decades, they wrote. 

“Rather, legislators have repeatedly considered but ultimately rejected efforts to replace the long-standing, light-touch framework with common carrier regulation,” wrote the members. “And for good reason: Title II will inflict significant damage on consumers by chilling investment and innovation.”

The FCC, they added, lacks any authority to subject broadband services to common-carrier regulation.

Nevertheless, the FCC’s decision effectively restores net neutrality rules that were first introduced during the Obama administration in 2015 and repealed two years later under the Trump administration, and now plans to oversee broadband as if it were a public utility, including by holding providers more accountable for outages, ensuring faster Internet speeds, requiring more network security, and mandating greater protections for consumer data.