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Providing for Consideration of H.J. Res 37, Disapproving FCC Internet and Broadband Regulations

Floor Speech

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Date:
Location: Washington, DC

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Mr. WALDEN. I thank the gentleman from the Rules Committee for his good work on this issue.

Mr. Speaker, there are a number of issues I would like to address as chairman of the Communications and Technology Subcommittee.

First of all, when it comes to the notion that the FCC--or let me back up--these carriers that give us the Internet might somehow regulate religious speech, it's interesting to note that the FCC, in its own order, threatens and pulls out specifically a threat to religious content. Paragraph 47, footnote 148, which I'm sure the gentleman from Colorado must know about, says that a religious organization would be prohibited from creating a specialized Internet-accessed service.

Now, there is an Internet provider out there called Koshernet that wanted to have a special service for those religious subscribers who happen to agree, if they don't want to be exposed to things on the Internet that they are bound to regarding their religion. So the issue that the FCC points out is that, oh, we're not going to allow that to happen under these rules. So you can't have a separate Internet provider that is just set up for its own subscribers that just wants to have a filter on the Internet, if you will, for those who want to subscribe to that because of their religious beliefs. So already you see a government getting involved at the head end.

Now, we've seen in Egypt where the government is involved and had a kill switch and just turned it off when opponents of the government got engaged. We've heard a lot about China, and we all know the various back doors to the Internet there that they tried to put in to regulate speech, to control access to content and all of that.

That's the government doing that.

We know this country for many years operated under the Fairness Doctrine. That was the government trying to regulate political speech on the broadcast airwaves. It wasn't until President Reagan's FCC after a couple of court decisions basically said that trips right up against the First Amendment that President Reagan's FCC repealed the Fairness Doctrine. Congress tried a couple of times to put it back in place. What we should be about is a free and open Internet.

And that's what we've had, and that's what allowed this incredible explosion of technology and innovation to take place. And it has not taken place because the government picked winners and losers on the Internet because the engineers and scientists and technicians and innovators and entrepreneurs did that on the existing Internet.

Now, along comes the government, the Federal Communications Commission, on a 3-to-2 partisan middle-of-the-night sort of decision, if you will, right over the holidays to say, We're going to seize control and regulate the Internet. Now, that's not been done before, although they tried in the Comcast BitTorrent case where they tried to regulate the Internet once before. But the court here in Washington, D.C. said they lacked the authority. They had not proven--they had failed to demonstrate that they had the authority.

And so the court struck them down pretty clearly in part because they relied on a statement of policy, and the court said a statement of policy does not constitute statutorily mandated responsibilities.

Previously, the FCC rule, by the way, that section 706 did not constitute an independent grant of authority and has not overruled that prior decision. Now, that's important, because section 706 is part of the foundation upon which they think they have this authority, even though in a prior case they've said that didn't grant them an independent grant of authority.

Regulating otherwise unregulated information services is not reasonably ancillary to the section 257 obligation to issue reports on barriers to the provision of information services.

There are a number of issues here that bring us to the rule that we have today on the Congressional Review Act that would repeal the rule that the FCC put in place at the end of the year and notified us on.

Now, why are we using the Congressional Review Act? It is a very specific, very narrow, very targeted bipartisan-created process.

The current leader of the Senate, Harry Reid, was an advocate and supporter of the congressional review process because it allows Congress to step in when an agency has overstepped its bounds on a major rule and say, No, you don't have the authority, or, We disagree with the rule, and so we chose this CRA process to overturn this rule that a partisan group of unelected officials chose to enact exceeding their authority.

Now Congress, whether you're for net neutrality regulation under title I or title XX or no title at all, you should not stand idly by when an agency exceeds its statutory authority.

I think, ultimately, this will be thrown out in court, once it's ripe for a court to review, as the court has slapped down the FCC in the past.

The long and the short of it, though, is that, in relying on section 706, they may have inadvertently opened the door for State regulation of the Internet, because section 706 says that the FCC and State commissions shall have certain authorities and goes on to explain that in the first title of that act.

I don't think any of us here wants that door to be opened, but the FCC, in its naked grab for power it does not have, chose to base part of their decision on section 706.

Now, I heard, as I was coming over here, a recitation of my comments last night in the Rules Committee by my friend and colleague from Colorado that all of the major companies support this, or virtually all, and, gee whiz, they did this voluntarily at the FCC. Well, come on. None of them will publicly admit to the fact that the FCC had, holding over their head, a title II proceeding that would have treated the Internet as a common carrier, as simple telephone service with a highly regulated environment.

And it's one of those Hobson's choices: either go with us with title I, which is ``light regulation'' but opens the door to government regulation for the first time of the Internet, or we may come after you on title II. Now, to back up that argument, I would point out that there's an open proceeding at the moment on title II. They have never closed their title II proceeding.

So these companies have a lot of other issues before the FCC, like mergers--has anybody ever heard of those?--and other things. They are their regulator.

I was regulated by the FCC for 22 years as a license holder in broadcast stations. The last thing you're going to do is poke your regulator. And when your regulator has you by your license or by your next merger, you're probably going to acquiesce to the lesser of two evils, which is what happened here.

So, Mr. Speaker, and to the ladies and gentlemen of the House, I would encourage you to support this rule. It's narrow. It's defined. It's closed for a reason, because the parliamentarians and others have told us basically there's no real way to amend this and carry out its lawful action. And so in a rare instance, this makes sense to have a closed rule.

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Mr. WALDEN. I just want to point out that back on KosherNet, the Federal Communications basically singled that out and said, no, you can't, as an Internet service provider, have that kind of separate system. You can't filter out even if you want to. And I think that's different.

As for the court decisions the gentleman referenced, I don't necessarily know where he's going on that. But I understand the court said the time is not right yet for the appeal by Verizon and MetroPCS on the Internet rules, not right because the Federal Communications Commission has not put these rules into the Federal register because they haven't completed some of their due diligence, apparently, on the effects on business.

So that will still be ripe to litigate later on. The other point I want to make is understand that while these rules promulgated, I believe, outside the authority of the FCC apply to the Internet service provider, the pipes if you will, they do not apply to the content providers on the other end. So in other words, once you get on the freeway, as we know the Internet, you want to get out into the neighborhoods eventually. And so a lot of people go to a particular search site let's say, a search engine, and that search engine is making enormous decisions about where you end up on the Internet.

Those search engines and other providers like that, they are not under these rules at all. And I would suggest I am not eager to have them under these rules. But I find it fascinating that they can block, they can tackle, they can hide, they can change their algorithms.

So you know, by the time you search for something, you may get moved from number one in your category to No. 71 because they make some decision in their algorithm. So there is a lot going on out there.

But I would say this: Most Americans have access to broadband, most of us are on the Internet, and we are a very powerful community when somebody misbehaves. And generally, the Internet has been successful because misbehavers have been punished by the consumers in an open and free marketplace effectively and quickly and much better than through a government regulatory regime.

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