NetCompetition

The Senate’s 52-46 rejection of the Resolution of Disapproval of the FCC’s net neutrality regulations (after the House voted differently 240-179 to disapprove last spring), is a classic pyrrhic victory for net neutrality proponents in two big ways.

First, the issue put the FCC on the political radar screen of every Member of Congress, and not in a good way.

For several hours the Senate debated and then officially voted on whether the Constitutionally-authorized Congress should be the entity to effectively establish new Internet law, or whether unelected FCC commissioners with no direct statutory authority from Congress should be able to effectively establish new Internet law and effectively claim boundless unchecked regulatory power whenever they see fit.

Supporters of the FCC were put in the very awkward position of politically having to defend a constitutional/legal position that:

• Is strongly contrary to the Senate’s institutional interests; and
• Involves preemptive regulation of a major swath of the economy without credible evidence of any existing problem — all in the midst of a weak economy badly struggling to create jobs.

Second, the Senate and House votes will make it even more likely that the D.C. Circuit Court of Appeals will overturn the FCC’s Open Internet Order next year because this process has made it even more more clear than before that the FCC has no direct statutory authority to regulate broadband or the Internet.

• Before these Hill votes the D.C. Circuit Court of Appeals had already ruled in Comcast vs FCC, on the core legal merits here, that the FCC does not have statutory authority to regulate broadband or the Internet.
• What these Hill votes tell the Court, is that there is exceptional controversy in Congress that the FCC is over-reaching its authority.
• The proof of that Congressional concern is that a majority of Members Congress (286-231) voted effectively, that under the seminal separation of powers doctrine, it is Congress’s sole Constitutional power to legislate, and that the FCC has no such authority, nor does it have the authority to self-grant itself that immense power via a majority vote of unelected commissioners.

In sum, this Senate vote is a classic pyrrhic victory because though they won and protected the FCC on this particular vote on this particular day, the negative legal and political fall out from the FCC’s over-reach will very likely outlast the legal viability of the FCC’s order itself, which will be decided most likely in the first half of 2012.

Simply, proponents of net neutrality have caused the FCC deep and lasting harm, because Congress is now much more reticent to grant the FCC more power in the future when they have proven so willing to exceed the statutory authority they already have. And those same net neutrality proponents have made it more likely that Congress in the future will vote to restrict the FCC’s authority in the future rather than expand it.