“The commission’s recent actions step well beyond its authority,” Walden, whose subcommittee oversees the FCC, told a gathering at the American Enterprise Institute (AEI) on Monday.
“The FCC is a child of Congress. It is high time that we returned to the good government practice of having the authorizing committee take a hard look at the agency before Congress hands over another appropriation…. It is essential we hold the commission responsible for the money they extract from the American public,” Walden said.
On Thursday, the FCC passed 317 pages of regulations in a 3-2 party line vote, with the commission’s three Democrats voting for, and its two Republican commissioners voting against rules that reclassify the Internet as a public utility under a 1934 law.
The rules have been the subject of controversy even as they remain largely unknown. No one outside of the commission is permitted to read them until the FCC chooses to make them available.
“You have three people in America, none of whom are accountable to any voters, who just decided on their own that the Internet needs to be dealt with like a failed monopoly,” Walden said. “When we get to see them [rules] is anybody’s guess.”
Walden said the congressional response could range from efforts to thwart net neutrality to a re-examination of the FCC’s mandate and funding.
On Wednesday, Walden’s subcommittee is set to hold a hearing to review the FCC’s budget request, which includes up to $71 million for new office space in 2016 and 2017; $17.5 million for new IT infrastructure; $4.8 million for pay raises; and $1.5 million for “non-salary increases.”
“It’s been 24 years since the FCC was last reauthorized by the United States Congress… How can the agency still be reliant on a budget and an authorization that was passed before the advent of smart phones or the rise of the commercial Internet?” Walden asked.
Additionally, FCC Chairman Tom Wheeler is expected to testify before a slate of congressional committees later this month about his justification for the net neutrality rules passed by the commission.
That includes Walden’s subcommittee, where all five FCC commissioners are expected to appear on March 19.
Walden derided net neutrality as a plan implemented at the behest of President Obama and said that it was the responsibility of Americans’ representatives in Congress to undo the damage.
“There’s no question that this is the role of Congress,” he said. “Taking the Title II path that the president decided upon is a mistake.”
Title II refers to the FCC’s decision to reclassify the Internet as a utility as a means to of enforcing net neutrality. Outside of Title II, the basic principles of net neutrality could have been imposed either through congressional action or the FCC’s use of what it known as Section 706 authority, which was created by the Telecommunications Act of 1996 and has previously been upheld in the courts.
Section 706 requires the FCC to ensure the "availability of advanced telecommunications capability to all Americans."
However, President Obama preferred – and Democrats on the FCC chose – the more contentious approach of reclassifying the Internet as a utility under the terms of the Communications Act of 1934.
Asked why Democrats were so insistent on the Title II approach instead of a less intrusive one, Walden replied: “I wish I had a good answer… I don’t know. There is a huge groundswell, more on the left, for Title II regulation of the Internet…
“It is a mantra, it is real, it is there, I know it, I hear from people who aren’t happy with my position. I can only imagine, since it’s more on the Democratic side than on the Republican side… they have to respond to that.
“I get that. I just think they’re going too far with Title II,” he said.
Before the FCC’s rules can be published in the Federal Register, they are subject to a 60-day period of review by the Office of Information and Regulatory Affairs (OIRA) to ensure they conform to existing law and fall within the independent commission’s authority.
Under an additional 60-day period where they are subject to review by Congress under the Congressional Review Act, Congress could choose to block the new rules. However, such an action is unlikely as it would require presidential approval.