Published in The Hill
December 11, 2014
Federal Communications Commission Chairman Tom Wheeler apparently is still considering adopting new net neutrality regulations that are based in some measure on classifying Internet service providers as common carriers under Title II of the Communications Act. Title II regulation is derived directly from the Interstate Commerce Act of 1887, the public utility-like regime developed in the nineteenth century to control the rates and practices of the railroads. This form of regulation was included in the 1934 Communications Act to regulate what was then the monopolistic Ma Bell system.
There are many policy reasons why Chairman Wheeler should take the prospect of Title II regulation off the table - including the fact that adopting Title II classification will result in the imposition of substantial new taxes and surcharges on consumers' bills. But here I want to focus on one particular, thus far unremarked upon, aspect of the legal difficulty that Title II classification would pose.
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When President Obama, on November 10, interjected himself directly into the FCC's proceeding by issuing a Statement explicitly calling on the agency "to reclassify consumer broadband service under Title II," he may have weakened, perhaps significantly, the case for granting deference to the Commission's decision. The President's intervention politicized the agency's decisionmaking process in a way that may give a reviewing court considerable pause before granting any deference. While President Obama gave a nod to the FCC commissioners' supposed independence, he then "ask[ed] them to adopt the policies I have outlined."
decision that an agency may change a previously adopted position - in that case, the FCC's policy regarding sanctioning indecent broadcasts - without demonstrating the new position is better than the old one. That is standard administrative law doctrine. But the institutional nature of the FCC as an independent regulatory agency insulated, at least to some extent from electoral politics, came into play in the Fox case in a way that, in light of the President's direct involvement in the net neutrality proceeding, could become a factor in any court review of a Commission reclassification decision.
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Justice Antonin Scalia's response, writing for the majority, is quite telling: "[T]he independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction."
Read the entire piece: http://thehill.com/blogs/pundits-blog/technology/226744-obamas-involvement-jeopardizes-fccs-net-neutrality-efforts
* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.
