The FCC, Still Lawless
by
Randolph J. May *
November 23, 2015
On the second day of this now nearly gone year, I published an essay, "A Question for 2015: Is the FCC Unlawful?" In it, I stated that "there are reasons why this year will be a propitious time to examine - even more intensely than in the past - the FCC and its actions through just such a lawfulness frame of reference."
Sadly, upon examination, the tendencies of the Obama administration's Federal Communications Commission (FCC) to exercise power in a lawless manner have become more manifest as the year has progressed.
The long and short of it is that, this year, the agency increasingly has arrogated to itself the power to impose sanctions upon those it regulates for actions the regulated parties could not have known in advance to be unlawful. This conduct ignores fundamental rule of law and due process norms because the agency is asserting authority to penalize regulated parties without adopting, in advance, knowable, predictable rules.
These rule of law norms weren't invented yesterday. Indeed, it is especially useful to recall this year - the 800th anniversary of Magna Carta - that our Constitution's conception of "due process of law" is generally acknowledged to be an inheritance from the Great Charter.
* * *
It may not be surprising that companies regulated by the FCC - in other words, firms whose businesses are subject to the agency's favor or not - choose to settle cases based on questionable assertions of agency enforcement authority. And it is not surprising that government officials relish exercising such unbridled authority. What may be surprising is that, as the Obama administration resorts to expanding administrative agency power across the board to achieve regulatory objectives it otherwise could not achieve, is that so little attention is paid to what is happening at the FCC.
A government of laws, not of men, requires a rule of law regime in which the rules are knowable and predictable - not one in which those subject to the government's enforcement authority are expected to be mind readers.
* Randolph J. May is President of the Free State Foundation, an independent free market-oriented think tank located in Rockville, Maryland. The FCC, Still Lawless was published in The Hill on November 23, 2015.
The Constitutional Foundations of Intellectual Property - A Natural Rights Perspective, by Randolph J. May and Seth L. Cooper, is available from Amazon
here or from Carolina Academic Press
here.
For a limited time you may purchase the book at www.caplaw.com at a 20% discount using the discount code IP2015.
