Congress Moves on Broadband Regulation--But to Where?

The announcement yesterday from key Senate Democrats of an effort to reform the Communications Act put me in a nostalgic mood. Here follows one of my longest efforts yet to bury the lede.

One of my favorite courses in law school was Abner Mikva’s “Legislative Process” course, which he taught while serving on the D.C. Circuit Court of Appeals and before his tenure as White House counsel to President Clinton. Mikva had previously served in Congress; indeed, one of the first votes I ever cast was for Mikva while an undergraduate at Northwestern University.

(It was a remarkable period at the law school. The year Mikva signed on as a lecturer was also the first year on the faculty for three professors just starting their academic careers: Larry Lessig, Elena Kagan, and Barack Obama. I took two classes with Lessig, including an independent study on the impact of technology on the practice of law, but regrettably none with the other two.)

There were two versions of the legislative process, Mikva made clear. The one we were learning--the one specified in the Constitution and the standing rules of the House and Senate—and the other kind, made up of byzantine posturing and back-room dealing.

I don't consider myself an expert in either, but especially not the second kind, which seems to require living inside the Beltway just to follow. And even then, I suspect, the participants always imagine themselves to be like Josef K in Kafka’s “The Trial,” where everyone believes they are really the only ones who understand what is really going on. (I read “The Trial” in another law school course, “Law and Literature,” taught by my future employer Richard Posner.)

“You know that there are so many various opinions about the procedure that they form into a great big pile and nobody can make any sense of them,” one character tells K. “This judge, for instance, sees proceedings as starting at a different point from where I do. A difference of opinion, nothing more. At a certain stage in the proceedings tradition has it that a sign is given by ringing a bell. This judge sees that as the point at which proceedings begin. I can't set out all the opinions opposed to that view here, and you wouldn't understand it anyway, suffice it to say that there are many reasons to disagree with him."

Yesterday began one of the second kind of legislative processes, with the announcement from Senators Rockefeller and Waxman that they will soon begin a series of “bipartisan, issue-focused meetings” to evaluate changes to the Communications Act.

This announcement followed on the heels of a letter from 37 Republican Senators to FCC Chairman Julius Genachowski urging him to abandon his plans to reclassify broadband Internet access as a Title II telecommunications service, which Genachowski first proposed on May 6. Also on Monday, 74 Democratic Congressmen likewise urged the FCC to abandon its “third way” reclassification efforts. “The significant regulatory impact of reclassifying broadband service is not something that should be taken lightly and should not be done without additional direction from Congress," the Democrats wrote. "We urge you not to move forward with a proposal that undermines critically important investment in broadband and the jobs that come with it.”

(It didn’t take a crystal ball to predict pushback from Congress on the FCC’s effort to end-run both Congress and the D.C. Circuit’s conclusion in Comcast v. FCC that the agency lacked jurisdiction to implement net neutrality rules, the major incentive behind the “third way” proposal. But for the record, I did predict it)

For more, see "FCC Broadband Reclassification: Third Way or the Highway?"

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