Commentary: the FCC's BIAS Rules and the Congressional Review Act

December 21, 2010. On December 21, 2010, the Federal Communications Commission (FCC) adopted (but did not release) rules that regulate broadband internet access service (BIAS). A majority of members of Congress are on record as opposing new regulation of broadband.

Also on December 21, Sen. Kay Hutchison (R-TX) said in the Senate that she would introduce a Resolution of Disapproval (ROD) under the Congressional Review Act (CRA) to block these rules, and Rep. Fred Upton (R-MI) issued a release that states that "Reps. Upton, Walden and Terry will look toward the Congressional Review Act of 1996 (CRA) to fight the FCC's actions."

This article summarizes the key provisions of the CRA, and offers the analysis that while, hypothetically, there is a real possibility that the Congress could pass a ROD, it would be vetoed by President Obama, and hence, would not succeed in blocking the rules.

However, there will also very likely be a judicial challenge based in part on the argument that the FCC lacks statutory authority. The FCC's argument that it possesses authority is weak, based upon the language of the Communications Act, and the opinion of the U.S. Court of Appeals (DCCir) in Comcast v. FCC. The Court of Appeals would likely take note of any Resolution of Disapproval. It would further damage the FCC's argument, and further diminish the already slim possibility that the Court of Appeals would uphold the new rules.

5 U.S.C. 801 provides that "Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing ... a copy of the rule ... a concise general statement relating to the rule, including whether it is a major rule ..."

But, "A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval ..." (Parentheses in original.)

5 U.S.C. 802 provides that the resolution "shall be referred to the committees in each House of Congress with jurisdiction". But, "if the committee to which is referred a joint resolution ... has not reported such joint resolution ... at the end of 20 calendar days ... such committee may be discharged from further consideration of such joint resolution upon a petition supported in writing by 30 Members of the Senate".

The Chairman of the House Commerce Committee (HCC) in the 112th Congress will be Rep. Upton, who opposes the FCC's BIAS rules. There will likely be far more than a majority on the HCC in support of such a resolution.

In the Senate, Sen. John Rockefeller (D-WV), a supporter of the FCC's rules, will remain Chairman of the Senate Commerce Committee (SCC), and could prevent or delay the SCC from considering such a resolution. However, CRA also provides for discharge from the committee in such a situation.

Section 802 then provides that if either the Senate committee reports the resolution, or is discharged, the full Senate must expeditiously consider the resolution. Section 802 provides that the resolution "is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. ... In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable." (Parentheses in original.)

Thus, it would appear that moving a Resolution of Disapproval through the House and Senate is a real possibility.

However, there remains the matter of a Presidential veto. President Obama not only supports the FCC's rules, his 2008 campaign promise has been a primary motivating factor for FCC promulgation of these rules.

Thus, given the likelihood that, if the Congress were to pass a Resolution of Disapproval, the President would veto it, Sen. Hutchison and other Congressional opponents of the BIAS rules are unlikely to be able to use the CRA to block implementation of the FCC's BIAS rules.

Other options available to opponents of the FCC's BIAS rules include passage of an appropriations rider that prevents the FCC from spending any money implementing or enforcing the rules, and a straight piece of legislation barring the FCC from writing BIAS rules, and directing it to vacate its rules.