When Legislation Fails, Regulate

In September, Rep. Henry Waxman (D., CA) admitted that net neutrality legislation — which would ban internet broadband providers from treating websites differently (e.g. charging a site that uses a lot of bandwidth fees) — couldn’t pass the House.  But Reuters reported that Waxman held out some hope that he could muster enough votes in the lame duck session. “Cooler heads may prevail after the elections,” he said at the time.

There’s no indication that Waxman is about to revive the legislation — perhaps because every single one of the 95 Democrats who pledged to support net neutrality lost on November 2 — but it looks like the Federal Communications Commission may have found a loophole that allows them to implement the rules without Congress’ permission. In fact, there’s speculation that FCC chairman Julius Genachowski is planning that the FCC vote on the issue at the December 15 meeting. From Bloomberg:

FCC Chairman Julius Genachowski may not have reached a final decision to seek a commission vote, “but right now it appears to be the most likely scenario,” said [Paul] Gallant, a former FCC staffer. He didn’t identify sources for his information. …

Genachowski in May proposed using the telephone rules as the “legal anchor” for reclaiming authority undermined by a U.S. court. Judges on a federal appeals court in April ruled the agency lacked authority to punish Comcast for interfering with subscribers’ Web traffic.

Now Genachowski “is leaning toward” relying on the same section of the law the court attacked, Gallant wrote.

The agency is trying to find authority for goals including subsidizing high-speed Internet service, or broadband, Gigi Sohn, president of the Washington-based advocacy group Public Knowledge, said in an interview.

“The Comcast decision left open a tiny little hole in the needle that the FCC can try to thread,” she said. “I believe they may try to do that.”

All 18 Republicans on the Energy and Commerce Committee in the House sent Genachowski a letter on Friday. “Approximately 300 members of the House and Senate from both sides of the aisle have indicated that the questions raised in the network neutrality rulemaking are better left to Congress,” the lawmakers wrote, adding that “reigniting the network neutrality debate” could “further jeopardize investment, innovation, and jobs.”

Katrina Trinko — Katrina Trinko is a political reporter for National Review. Trinko is also a member of USA TODAY’S Board of Contributors, and her work has been published in various media outlets ...

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