• by Wendy Davis , Staff Writer @wendyndavis, November 13, 2014

Earlier this week, immediately after President Barack Obama said that broadband should be regulated as a utility, Sen. Ted Cruz (R-Texas) posted a much-mocked tweet comparing Internet access to health care. "'Net Neutrality' is Obamacare for the Internet; the Internet should not operate at the speed of government,” he posted on the microblogging service.

The comparison is questionable for many reasons, not least of which is that net neutrality laws merely aim to codify principles that Internet service providers historically followed.

Regardless, now Cruz is doubling down on his anti-regulatory sentiment. He, along with more than 40 other Republican lawmakers, now say that the FCC lacks authority to follow Obama's recommendation by reclassifying broadband as a public utility.

"Reclassification would require the Commission to find that Internet access is a telecommunications service, not an information service. These are not matters of opinion but distinctions made in the text of the Communications Act,” the GOP lawmakers said on Wednesday in a letter to FCC Chairman Tom Wheeler. Other signatories include John Thune, ranking member of the Senate Commerce Committee (R-S.D.) and Fred Upton (R-Mich.), chairman of the House Energy and Commerce Committee.

The letter comes in response to Obama's public call for the FCC to treat broadband service as a utility. Many net neutrality advocates say the FCC can't pass enforceable open Internet regulations unless it first reclassifies broadband as a utility service, which is regulated under Title II of the Telecommunications Act.

The agency has been trying to craft new net neutrality rules since January, when a federal appellate court struck down the prior regulations. Those rules prohibited wireline broadband providers from blocking or degrading sites, and from engaging in unreasonable discrimination -- a prohibition many believe would have prevented Internet service providers from charging companies higher fees for faster delivery.

Earlier this year, FCC Chairman Tom Wheeler proposed a set of rules that would have banned ISPs from blocking sites, but allowed them to create paid fast lanes. That proposal drew a record-breaking 3.9 million comments, many of which urged Wheeler to abandon his blueprint and reclassify the broadband as a Title II service.

Obama joined on those calls on Monday, when he released a statement urging the FCC to treat broadband as a utility.

Opponents of that idea argue that Title II regulations are better suited to the telephone industry than modern broadband technology. Obama and other advocates say the FCC can simply “forbear” from applying Title II provisions that don't make sense for broadband.

But the Republicans who oppose reclassification question whether this approach is practical. “The Commission currently has 1,000 active rules that are based on Title II, occupying nearly 700 pages in the Code of Federal Regulations,” the lawmakers write. “The amount of time the Commission would have to spend on forbearance activity would be staggering.”

Advocacy group Public Knowledge was quick to criticize the GOP lawmakers' move. "Rather than engage on the merits, Chairman Upton and Ranking Member Thune responded with a litany of talking points provided by industry lobbyists, choosing to side with a handful of special interests rather than the millions of small businesses, entrepreneurs and ordinary Americans who want to keep the internet a level playing field for all,” the group said in a statement.