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Public Statements

Disapproving FCC Internet and Broadband Regulations

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. WALDEN. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, in a representative democracy, Federal agencies may impose regulations only to the extent authorized by the United States Congress, the elected representatives of the American people. I introduced H.J. Res. 37, which enjoys bipartisan support, because Congress has not authorized the Federal Communications Commission to regulate the Internet.

H.J. Res. 37 is a resolution of disapproval filed pursuant to the Congressional Review Act. It would prevent the agency from imposing the same or substantially similar rules through reclassification of broadband under title II of the Communications Act or through any other claimed source of direct or ancillary authority. If not challenged, the FCC's power grab would allow it to regulate any interstate communication service on barely more than a whim and without any additional input from Congress.

The FCC's claim that it can regulate the Internet under section 706 of the 1996 Telecommunications Act is not credible. The FCC has previously held that section 706 is not an independent grant of authority and the language of the section tells the FCC to remove barriers to investment, not create them. The FCC's reliance on section 706 could open the Internet to regulation by all 50 States.

Also flawed is the FCC's claim it can regulate the Internet under titles II, III and VI of the Communications Act because broadband has indirect impact on traditional services. Section 230 of the Communications Act makes clear that it is the policy of the United States to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services unfettered by Federal or State regulation. This regulation by ``bank shot'' is nothing more than a weak attempt to do an end-run around the D.C. Circuit Court's April 2010 ruling in the Comcast case that the FCC failed to show it had authority to regulate Internet network management.

The Internet is open and innovative thanks to the government's hands-off approach, as Democrat FCC Chairman William Kennard has explained, and I quote: ``The fertile fields of innovation across the communications sector and around the country are blooming because from the get-go we have taken a deregulatory, competitive approach to our communications structure, especially the Internet.'' There is no crisis warranting government intervention.

The FCC even admits in its own order that it did not conduct a market power analysis.

Dr. David J. Farber, the grandfather of the Internet, says the FCC's ``order will sweep broadband ISPs, and potentially the entire Internet, into the big tent of regulation. What does this mean? Consumer needs take second place, and a previously innovative and vibrant industry becomes a creature of government rulemaking.'' From the grandfather of the Internet.

The order picks winners and losers and will threaten small providers that do not have the resources to send teams of lawyers to camp out at the FCC. How carriers manage their networks should be determined by engineers and entrepreneurs and consumers in the marketplace, not by as few as three unelected commissioners at the FCC.

My colleagues claim large broadband providers support the order--you will hear that today--but they only did so under the threat of being regulated like an old-fashioned telephone company under title II of the Communications Act. They are still concerned, and they say network neutrality is a solution in search of a problem.

AT&T's CEO has said, ``Regulation creates uncertainty.'' ``I would be lying if I said I was totally pleased with it,'' and, ``I'd like to have had no regulation, to be candid, but that wasn't going to happen.''

The CEO of a large cable association has said that ``there could certainly be an adverse economic impact by chilling the willingness to deploy these new services.'' The CEO of a large wireless association has said that some uncertainty over FCC implementation remains and ``increased regulation tends to depress rather than accelerate investment.''

Now opponents of H.J. Res. 37 will also criticize the Congressional Review Act process, but Senate Majority Leader Harry Reid, one of the authors of the CRA, has said the disapproval process is--and I quote the Majority Leader of the Senate--``a reasonable, sensible approach to regulatory reform.''

You see, the CRA was dually enacted by Congress and signed into law by President Clinton. And despite their recent criticism, even my colleagues themselves have co-sponsored disapproval resolutions in the past, including Mr. Waxman, Ms. Eshoo, Mr. Markey, Ms. Schakowsky, and Mr. Dingell. They cosponsored H.J. Res. 72 in 2003. And Mr. Waxman, Ms. Eshoo, Mr. Doyle, Ms. Schakowsky, and Ms. Baldwin co-sponsored H.J. Res. 79 in 2008. Both, by the way, were resolutions disapproving of FCC rules.

So my colleagues complain that amendments are not in order, but that is because the language of the Congressional Review Act itself dictates the specific language of the disapproval resolutions, and to allow amendments would frustrate Congress' very intent in providing a straight up-or-down vote on whether to disapprove just these types of overreaching agency rules.

My colleagues say that instead of considering this resolution we should be debating comprehensive legislation to authorize the FCC to regulate the Internet. Then why did they refuse our repeated requests last Congress to hold hearings on whether such intervention is warranted? Why did they wait until November before proposing their own legislation--so close to the end of the last Congress there was no time for reasoned debate? And why did they single out only certain segments of industry for regulation and refuse to require a market power analysis? It is all too convenient that they wait until after the rules have been adopted and are vulnerable to legislative and judicial reversal before engaging.

A vote against this resolution is simply a vote that will allow the FCC to adopt substantially similar rules under title II when the FCC loses in court, something even network neutrality advocates like Free Press say is likely. Indeed, the FCC still has a proceeding open to do just that.

So for all of these reasons, I urge my colleagues to support H.J. Res. 37.

Mr. Speaker, I reserve the balance of my time.

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Mr. WALDEN. Mr. Speaker, I just want to make one point. This is not partisan legislation. We have two Democrats as co-sponsors of the legislation, and I anticipate it will actually have a bipartisan vote, as it has had in the past.

I now yield such time as he may consume to the chairman of the Energy and Commerce Committee, the gentleman from Michigan (Mr. Upton).

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Mr. WALDEN. Madam Speaker, I yield myself such time as I may consume.

Obviously, my friend, the gentleman from Massachusetts, walked in a little late because we just heard that all those big companies he railed against are opposed to this resolution we have before us. So if anybody is doing the bidding of those companies, it must be the Democrats, who have rattled off as part of their argument all those very companies that he just railed against who are opposed to us.

I now yield 2 minutes to the vice chairman of the Communications Subcommittee, the gentleman from Nebraska (Mr. Terry).

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Mr. WALDEN. Madam Speaker, the last time I checked, it's like the Government of Iran controls their Internet. That's what we are trying to avoid here is government control of the Internet.

I yield 2 minutes to the gentleman from Florida (Mr. Stearns).

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Mr. WALDEN. Mr. Speaker, I think this points up two things. When you have government-run microphones on the Internet, you're going to have a problem. And, second, we are for open and free microphones; so they are welcome to use our podium as well.

I now yield 2 minutes to the gentleman from Georgia (Mr. Gingrey).

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Mr. WALDEN. Parliamentary inquiry, Mr. Speaker.

The SPEAKER pro tempore. The gentleman will state his inquiry.

Mr. WALDEN. What is the relevance?

The SPEAKER pro tempore. The gentleman from Washington is reminded to confine his remarks to the subject matter of the joint resolution.

Mr. DICKS. Well, I think the relevance is: Why are we here working on this piece of legislation at this time when we are on the verge of a crisis of shutting down the government?

Mr. WALDEN. Will the gentleman yield?

Mr. DICKS. I yield to the gentleman from Oregon.

Mr. WALDEN. I would be happy to answer.

I am not part of that negotiating team. And I don't think you are, and I don't think Ms. Eshoo is or Mr. Waxman. And so those who are negotiating are negotiating, and we're taking care of this business.

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Mr. WALDEN. Mr. Speaker, it is evident that there's confusion on their side of the aisle, because at one end they have a Speaker that says we're doing the bidding of the big oligarchies, these big companies, and on the other hand that all those companies oppose what we're doing. I'm trying to figure out just which side they're on. We're for an open Internet that is vibrant as it is today because it's not regulated by the government.

I would now yield 1 minute to the gentleman from Florida (Mr. Diaz-Balart).

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Mr. WALDEN. First of all, I think it's very interesting that the last speaker pointed out that in Iran and in China they can shut down the Internet. That's because the government controls the Internet. That's what Republicans are trying to stop from happening here, in part because we think it's wrong, in part because we know that the FCC does not have the legal authority to take this action. That's why we're doing that.

But beyond that, it's a bad economic decision, because we had a Harvard MBA testify before our committee, ``Over time, the order represents a direct transfer of wealth from broadband access providers to those whose content rides over the network. That means that it provides those who ride the network with a strategically vital financial weapon to use against broadband providers who in many cases are their competitors.''

You see, this is picking winners and losers. The Democrats do not want to extend the net neutrality rules to the search engines and others who ride on the network. They don't want to do that. They want to pick a winner and a loser. They're the ones who are siding with the big companies in this case. We're the ones on the Republican side who are siding with keeping the Internet open and free as it is today, that has allowed it to flourish and grow, that has allowed incredible technology and innovation to take place. We want it open and unfettered from government regulation in terms of the management of the Internet.

Further, we do not believe that the FCC has the legal authority to regulate in this area. When they have attempted this before, the D.C. Circuit Court has said, you did not prove, FCC, that you had legal authority and struck them down. And if they are able to get authority using section 706, they may well have opened the door to every State regulator in the country regulating the Internet. That's bad for innovation.

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Mr. WALDEN. To my dear friend and colleague from Maryland, I'm actually surprised he has the time to come to the floor given the status of negotiations, I'm sure they're taking place as we speak, but we appreciate him coming to the floor.

Let me make a couple of points. First of all, the continuing resolution they put forward in this context is more of the status quo spending that just keeps government growing. We're saying no; we are to do better than that for the American people. We need to reduce wasteful Washington spending. We need to create jobs in the private sector.

We came here to cut back on the deficit and not put an ever-increasing, intolerable, unsustainable--frankly, immoral--budget deficit and debt on the next generation, our kids and our grandkids. We did not come here to do that. We came here to cut spending.

Mr. HOYER. Could my friend yield just so I can correct, because I will tell my dear friend----

Mr. WALDEN. I have not yielded.

Mr. HOYER. Could you yield just so I can correct the statement? Because it does cut the $51 billion we've already agreed to. And I thank the gentleman.

Mr. WALDEN. I appreciate that.

The point here, though, is this: We would not be here today if the Democrats in the last Congress had bothered to take up a budget and pass it or even vote on it. That is the first time since the 1974 Budget Act was put into law that I believe the House didn't consider a budget. It's not that the House and Senate have always agreed on a budget, but at least they've always voted on a budget. And the Democrats, under Speaker Pelosi and my friend from Maryland, could not bring or did not bring a budget to the House floor for even consideration in the House.

Now I was in small business for 22 years, I've served on various boards, and if you failed to bring a budget and pass a budget at a city council, a county commission, a corporation, you would be tossed out. But in the Congress--well, I guess they did get tossed out in November, but they didn't do a budget. And then, you didn't fund the government through the fiscal year we're in today. You only funded it into March, and then it was left on our doorstep when we took the majority. That's not the first time that's happened, and it has happened over time, but we came in and said, okay, we won, we assume the responsibility to govern. And we passed a continuing resolution to fund the government through the rest of this fiscal year--it would have funded our troops and everything else--and cut $61 billion in spending. And that still resides in that august body across the Capitol where they can't seem to act.

When that didn't work, we came back with another continuing resolution, cut $2 billion a week. That resolution was passed in this House--I think with bipartisan support--went to the Senate, was passed there, signed by the President. We continue to negotiate because we're not here to shut down the government. We're here to cut the government spending and get back toward a balanced budget and create jobs in the private sector.

When they couldn't get a deal, we passed another continuing resolution. We cut more--another $2 billion a week, we're up to 10 now. That passed this House, it went over to the Senate, it became law.

And then when we could get nothing else back from the Senate, yesterday we brought forward a resolution to make sure our men and women in uniform, who are fighting for our freedom across this globe, and their families here at home, would get paid through the end of this fiscal year. And we also cut spending. We cut the spending we cut in the first resolution--that's still residing in the Senate where they can't act--and we sent that over to the Senate where it sits. Now the first thing we hear from the President is, I'm going to veto it. And the Senate says, oh, we can't take that up. Well, why not? We passed it here, and we did so in a bipartisan way. And it's over there.

Republicans have acted responsibly to the will of the American people. We have said time and again we will govern, and we will govern responsibly. There is no blank check here anymore. And we're going to follow the rules.

POINT OF ORDER

Mr. WALDEN. That is why I am insisting on my reservation of a point of order because we are not going to violate the House rules. The motion is not in order because it violates clause 7--as I'm sure the gentleman from Maryland knows--of rule XVI of the Rules of the House. It is not germane to the resolution before us.

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