Originally published by The Hill here.
The Federal Communications Commission (FCC) has one of the least enviable jobs in D.C. right now. Over the coming months, immense pressure is on it to come up with new Internet rules that will affect the economy and everyone in it, while attempting to appease millions of passionate activists.
Regardless of its decision on how best to handle the so-called “net neutrality” issue, banner-waving meeting crashers are the least of the Commission’s worries. If, as expected, the FCC imposes rules that result in a greater regulatory burden on Internet companies, its biggest foe is going to be the U.S. Congress. Given that the new Republican majority believes that it was given a mandate to overhaul the way D.C. operates, along with a number of tools for making regulators excessively uncomfortable, this isn’t something the FCC should take lightly.
FCC Chairman Tom Wheeler seems like he’s readying for the fight. After House Judiciary Committee Chairman Bob Goodlatte (R-Va.) dropped a line to the FCC warning it not to overstep its bounds, Chairman Wheeler effectively responded “we can do what we want.” Although previously coming to agreement with President Obama on a less intrusive approach, the president’s recently announced U-turn of support for Title II reclassification (considered the most extreme regulatory option) has pressured the FCC to consider whether it should still revert to its original agreement, which neither the president nor Congress seem to be interested in now.
Signs are now indicating that the FCC may try to take a page from the recent Cromnibus debate, struggling to offer something to everyone, while fully satisfying no one. As even staunch supporters of stronger regulations have admitted that Title II reclassification will result in higher consumer costs (e.g. Free Press), Congress should do everything it can to make the FCC’s new rules ineffective.
Before bringing out the hatchet, Congress should start with the creation of a new law, reaffirming its desire to maintain the Internet truly free and open without the need for a new regulatory liability and higher consumer costs, while simultaneously limiting the use of the FCC’s budget. Republicans have been criticized for denouncing Democratic policies like the Affordable Care Act without passing their own solutions (which isn’t exactly true, but it was an effective talking point). Starting with legislation will nip this argument in the bud and may restrict the FCC’s ability to implement its own policies. Given the shift towards Title II reclassification, a compromise might ensure that the debate doesn’t end up in a lengthy court battle that compels investors to sit on the sidelines waiting for political certainty. A good compromise might even suppress a White House veto.
Concurrently, Congress should overturn any new FCC rules that will have the effect of encumbering the economy and families’ disposable income. Though rarely used, possibly because its existence serves as a deterrent, Congress has the power to review, and overturn, regulations created by federal agencies that it disapproves of. Yes, the White House can overturn the overturn, but depending on how pleased the President is with the FCC’s new ideas, it might be in the Democrat Party leader’s interest to allow Congress to have its way.
But, since November’s midterms, the president has grown increasingly obstinate in his views; vetoes may be imminent. Congress, however, has a couple of other tricks up its sleeve, both of which are particularly annoying to federal agencies and appointed officials. Chairman Wheeler can probably think of a lot of things he’d rather be doing than preparing for Congressional hearing after Congressional hearing, not to mention his other high-level FCC counterparts that will most certainly be subpoenaed. Endless investigations have been known to stymie the efficiency of more than one agency in the past and Congress probably uses this option more than it should, but if this is what it takes to slow the implementation of unnecessarily burdensome regulations, legislators should make Tom Wheeler the next C-SPAN star.
Congress might not have the standing to sue the FCC, but it shouldn’t stop it from trying, or at least assisting D.C. outsiders in their efforts to do so. Not being a legal scholar, I can’t advise on the intricacies of potential judicial recourse, but I’m certain that, if the FCC acts in a manner that restricts Internet Service Providers’ ability to invest in the infrastructure of an industry vital to our economy’s future, a protracted legal battle will ensue, and should. For the sake of our economy, the FCC should take care to avoid this possibility at all costs.
Now that every business and hundreds of millions of Americans place a significant reliance upon the Internet to conduct commercial transactions, it has an immense impact on what survivors of the Great Recession and macroeconomic analysts know is still a tenuous economic environment. The potential economic impact of FCC regulations are immense for businesses, and inconvenient at best for consumers. If the FCC decides to go the route of heavier regulatory oversight, it’s going to find out that Congress’ naughty list isn’t a fun place to be.
Vélez-Hagan is the founder of The National Puerto Rican Chamber of Commerce, economic policy researcher at the University of Maryland-Baltimore County, and author of the upcoming book, The Common Sense behind Basic Economics (2015). @JVelezHagan