S.J. Res. 34, A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the FCC relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”
On Tuesday, March 28, 2017, the House will consider S.J. Res. 34, A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”, under a closed rule. S.J.Res. 34 was introduced on March 7, 2017 by Sen. Jeff Flake (R-AZ) and was referred to the Senate Committee on Commerce, Science, and Transportation and discharged through the Congressional Review Act’s expedited procedures. S.J.Res 34 passed the Senate without amendment by a vote of 50-48.
S.J.Res. 34 would disapprove and nullify the rule issued by the Federal Communication Commission on December 2, 2016, that established specific privacy rules for broadband Internet Service Providers.
The Congressional Review Act, enacted in 1996, establishes special congressional procedures for disapproving a broad range of regulatory actions issued by federal agencies. If Congress passes a joint resolution disapproving the rule, and the resolution becomes law, the rule cannot take effect or continue in effect. The agency also may not reissue that rule or any substantially similar rule, except under authority of a subsequently enacted law. Additionally, actions taken under the Congressional Review Act are not reviewable by the courts.
In February 2015, the Federal Communications Commission (FCC) signaled that it intended to use Section 222 of the Communications Act, which requires telecommunications carriers to protect customer proprietary network information, to regulate the privacy practices of Internet service providers. The FCC adopted a Report and Order in October 2016 that adopted rules regulating broadband ISPs, creating rules that applied to ISPs, but not to the broader Internet. Senator Flake sent the FCC a letter in January 2016 questioning the authority to policy consumer privacy in the manner laid out by the Commission’s Enforcement Bureau.
The resolution would not lessen consumer privacy protections. Rather, it is designed to block an attempt by the FCC to expand its regulatory jurisdiction and create a two-tiered privacy regime where internet service providers are regulated under a different set of rules than other Internet companies. The FTC’s enforcement-based approach to privacy regulation has enabled the rise of the Internet as the driver of 21st century communications and commerce without stifling innovative. Despite calls to emulate the FTC’s approach, the FCC chose to adopt onerous rules.
According to the bill’s sponsor, “The FCC’s midnight regulation has the potential to limit consumer choice, stifle innovation, and jeopardize data security by destabilizing the internet ecosystem. Passing my resolution is the first step toward restoring a consumer-friendly approach to internet privacy regulation that empowers consumers to make informed choices on if and how their data can be shared. It will not change or lessen existing consumer privacy protections.”
A Congressional Budget Office estimate is unavailable.
For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 2-1374.
 See Senator Flake’s Press Release, March 23, 2017.