This FSF Perspectives presents Jonathan Blake's reaction to Professor Enrique Armijo's Perspectives from FSF Scholars, "Net Neutrality, Administrative Procedure, and Presidential Overreach" published on November 19, 2015. Neither author takes a position on the merits of net neutrality regulation. Instead, their mutual concern is the propriety of the administrative process during the FCC's Open Internet proceeding.

Using Professor Armijo's views as a springboard, Mr. Blake addresses the role of the executive branch (in this case President Obama's involvement in the FCC's Open Internet proceeding) in the administrative agency process. He takes a somewhat different view than that expressed by Professor Armijo in his original Perspectives.

Given the importance and timeliness of the subject matter, Professor Armijo has kindly provided a brief Response.

Below you will find both the first few paragraphs of Jonathan Blake's longer Perspectives and Professor Armijo's brief Response.

The Administrative Process, the Legislative and Executive Branches, Net Neutrality, and Disclosure

Jonathan Blake *

In his November 19, 2015, article, "Net Neutrality, Administrative Procedure, and Presidential Overreach," published by the Free State Foundation, Professor Enrique Armijo, a friend and former colleague, has raised fascinating and important issues that call for broader attention. Though framed in the context of the net neutrality debate at the Federal Communications Commission and now in the courts and in Congress, the issues he has raised are crucial to the proper functioning, more generally, of all agencies at the federal and state level.

I believe that (1) this country could not function without heavy reliance on the administrative process, (2) therefore, it is important to get it right, and (3), as I have written elsewhere ("FCC Process Reform: Redrawing the Limits of Authority in the Administrative Agency System," TechPolicyDaily, August 11, 2015), the original consensus among the principal government participants in the process about how the process should function has, unfortunately, dissipated. Therefore, it needs to be reviewed, adjusted as needed and reaffirmed. Because Professor Armijo shares this concern, particularly about the role of the executive branch and the disclosure requirements, his article provides a useful jumping off point for additional comment.

Like Professor Armijo's article, this piece does not take a position on the merits of the net neutrality issue. It does not critique, on their merits, the positions that the White House took in this debate nor on opposing viewpoints about these issues. Professor Armijo's concern is administrative process, and so is mine.

Response: The Administrative Process, the Legislative and Executive Branches, Net Neutrality, and Disclosure

Enrique Armijo **

I don't have much to say in response to Jon Blake's thoughtful response to my November 19 Perspectives piece; I have learned much from Jon, both now and during our time as colleagues. I have only two points to make.

First, I don't believe (nor has Jon characterized my paper as arguing) that there was anything improper per se about the President's intervention in the net neutrality debate. As Jon's piece shows, it is a convenient fiction to pretend that in administrative law, there is much if any daylight between politics and policy. But it is a more troubling fiction to pretend that a nominally independent agency, as a matter of mere coincidence, happened to change its mind on a pending issue at the very time the President made his position on that issue known to the agency and the public.

For those who followed the recent oral argument in the D.C. Circuit closely, one particular exchange was telling. Judge David Tatel asked the FCC's counsel for "the crispest answer" to his question of why the FCC changed course from the lighter-touch approach propounded in its Notice of Proposed Rulemaking and in Chairman Wheeler's public statements to Title II reclassification of both fixed and mobile broadband in its final rule. The answer to that question was one that everyone in the courtroom and listening online knew, but it was an answer FCC's counsel could not give: "Because the President said so." If there is really nothing wrong with the FCC adopting a rule because the President said so, one wonders why it can't admit in court that this was the case.

Second, Jon emphasizes the complementary points that (1) the White House's arguments for reclassification were identical to arguments already made by other parties in the net neutrality docket; and (2) those parties advocating for less strict rules had multiple opportunities to argue against reclassification to the FCC, both as against those comments I just mentioned and as against the White House's statement itself, which was made part of the rulemaking record as well. Again, no disagreement here. But here is an interesting fact: in the 317 pages, 600-plus paragraphs, and nearly 2,000 footnotes of the operative part of the Commission's Open Internet Order, the President's statement is not cited a single time. Not once.

The FCC claims to have been persuaded to reclassify by the four million commenters who demanded Title II regulation of broadband service. But it is beyond meaningful dispute - despite the agency's claims and its voluminous record - that the deciding proposal was the one filed by the metaphorical 4,000,001st commenter, who happened to also be the President of the United States. That may not be undemocratic, for the reasons Jon explains. But it isn't what the APA intended for agency rulemaking procedure.

* Jonathan Blake is a Retired Partner at the law firm of Covington & Burling LLP, where for many years he headed the firm's Communications and Media Practice. Mr. Blake is a past President of the Federal Communications Bar Association. He is a graduate of Yale University and Yale Law School and a Rhodes Scholar.

** Enrique Armijo, a member of the Free State Foundation's Board of Academic Advisors, is an Associate Professor at the Elon University School of Law and an Affiliated Fellow of the Yale Law School Information Society Project.

A PDF of this Perspectives is here. A PDF of Professor Armijo's response to Mr. Blake is here.

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