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Washington Report: Congress returns to a full slate

By Bob Deegan, director – Government Relations

Members of Congress have just returned to Washington with the end of the spring recess and both chambers will immediately have to get to work hammering out a budget deal by April 28 to avert a government shutdown, something the GOP is particularly keen on avoiding given its control of the legislature and the White House. Once that is accomplished, Congress and President Trump have made it a priority to tackle tax reform. In fact, Trump just released some details on his proposal, which among other things would cut personal and corporate tax rates. This, of course, is a complex and controversial topic so hopefully it does not take too much air out of the room and prevent progress on an infrastructure package, which is one issue that for the most part has bipartisan support. 

Broadband infrastructure

It doesn't look like there is an infrastructure package ready for prime time at the moment but rural telecommunications providers should take note there has been pressure from many representatives, including GOP leadership of the House Subcommittee on Communications and Technology and the Senate Committee on Commerce, Science, and Transportation. In fact, both bodies have held hearings addressing infrastructure in which the need to include funding for broadband in any package was discussed. In addition to the need for sufficient funding, these hearings have also addressed the best way to disburse funding as well as the need to streamline obstacles that are currently hampering the ability of providers to further deploy broadband to unserved areas. One good thing to note on the funding issue is that many, including FCC Chairman Ajit Pai, have expressed an interest in having the existing USF programs be a primary vehicle for getting any available infrastructure funds out to the providers. 

Congressional Review Act

As Congress returns it will also restart the clock on the time in which the Congressional Review Act can be used to roll back regulations enacted in the last several months of the Obama administration. The CRA is an obscure rule enacted back in 1996 during the Clinton administration. The purpose of the act was to establish a process through which rules issued by federal agencies could be invalidated within 60 legislative days of the rule's implementation. Congress only needs a simple majority (over 50 percent) in each chamber to present CRA resolutions to the president, who must sign the resolutions for the agency rules to be invalidated. Given that most agency rules are enacted by agencies with priorities closely aligned with the president, the CRA has gone largely unused for the 20 years prior to the Trump administration, the one exception being a Department of Labor rule in 2001 in the early days of the George W. Bush presidency.

Notwithstanding this, the current GOP control over the federal government has created the perfect storm for the CRA to be used liberally to invalidate regulations implemented since mid-June of 2016. Given the 114th Congress ended before the 60-day CRA period had expired, the clock began anew with the 115th Congress. As of April 19, Trump has already signed 13 CRA resolutions, with a few more that remain pending before the Senate. 

Many of these CRA actions deal with a broad range of rules enacted by agencies such as the SEC, the Department of the Interior, NASA and the Department of Labor, and have fallen largely under the radar. However, the resolution that invalidated the FCC's ISP Privacy Order has been the subject of widespread media attention with public interest groups arguing that ISPs will now be able to sell the browsing histories of their customers. The rollback of the privacy rules was certainly welcome news to many small telecommunications and broadband providers concerned with the burdens the rules would have imposed, but there is still widespread agreement on the need for some level of oversight of ISP privacy. In fact, Pai and Federal Trade Commission Chair Maureen Ohlhausen promised to work to "restore the FTC's authority to police ISP's privacy practices" and Pai has noted the FCC still can use its Section 222 privacy regulations to ensure ISPs protect consumer information. 

Net neutrality revisited?

Many industry observers believe the CRA resolution on ISP privacy was the first step in the eventual retreat from provisions of the FCC's Open Internet Order, specifically the reclassification of broadband internet access service as a Title II telecommunications service. It is too late for Congress to use the CRA on the Open Internet Order, as those rules went into effect in 2015. However, Pai announced the FCC will vote on a Notice of Proposed Rulemaking at its May 18, 2017 Open Meeting that: proposes to return broadband internet access service to a Title I information service; proposes the elimination of the internet conduct standard; and seeks comment on how best to approach the open internet's bright-line rules, which are no throttling, blocking or paid prioritization. It has been reported Pai is not opposed to the core open internet principles but is more interested in seeing this be accomplished on a voluntary basis.

Effect on other telecom priorities

Even if such principles are maintained, efforts to reverse the Open Internet Order have already elicited a fight from opponents of such a move, including FCC Commissioner Mignon Clyburn and many congressional Democrats who held a press conference to rebut Pai's announcement. Further, with no legislative solution to this issue in sight, it is reasonable to think the long running issue will continue to negatively affect the ability to move forward on other priorities, such as a Communications Act update. Despite the rancor over this issue, there is hope that issues of rural importance with bipartisan support, such as broadband infrastructure and rural call completion, on which a bill is currently waiting on Senate committee action, will continue to gain traction. 

Filed under April 2017, Tagged with Congress, FCC, Open internet

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