The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses
Free State Foundation President Randolph J. May and Senior Fellow Seth L. Cooper's article, The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses, was published by the Federalist Society Review on May 23, 2016. The Federalist Society Review is the distinguished scholarly journal published by The Federalist Society.
In the article, May and Cooper explain that the manner in which the Federal Communications Commission carries out its enforcement and merger review activities flouts important rule of law principles.
Below is the Introduction to the article. A PDF of the full article, with all the footnotes, can be accessed here. "'The highest morality almost always is the morality of process,' according to the late eminent Yale Law professor Alexander Bickel. Professor Bickel's assertion offers a useful starting point for some thoughts on the relationship of proper process to commonly accepted rule of law norms. More specifically, the focus of this article is the handling of certain process issues by the Federal Communications Commission ('FCC' or 'Commission') in the context of these accepted rule of law norms. There are many candidates from which to choose in thinking about FCC process reform and the rule of law. But the focus of this article is on the Commission's enforcement and merger review activities. It is hoped that this discussion will provide a further impetus for process reform at the agency. At the outset, it is useful to explain what this article means by 'process' and 'rule of law.' By process, this article refers to the procedure or mechanics employed by the agency to reach a decision, as opposed to the decision's pure substance (although process often affects substance). For example, providing adequate notice so that the public has a meaningful opportunity to comment in a Commission rulemaking is a matter of process. Requiring relevant materials to be included in the record so that the public has an adequate opportunity to comment on them is a matter of process. Maintenance of a rule of law regime requires adherence to certain process norms. In the context of constitutional and administrative law, these norms often are subsumed under the expression 'due process of law.' In his famous concurrence in Youngstown Sheet and Tube Co. v. Sawyer, Justice Robert Jackson explicitly invoked the Constitution's Due Process Clause and combined it with a famous adage when he declared, 'there is a principle that ours is a government of laws and not of men, and that we submit ourselves to rulers only if under rules.'
What does it really mean to have a government of laws, not of men? To submit to rulers only if under rules? In his instructive book, The Rule of Law in America, Ronald Cass defined the elements of the rule of law as: (1) a system of binding rules; (2) of sufficient clarity, predictability, and equal applicability; (3) adopted by a valid governing authority; and (4) applied by an independent authority. In the same vein, Friedrich Hayek, in his famous work The Road to Serfdom, declared that the rule of law 'means the government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to see with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge.' For the Federal Communications Commission to conform to the rule of law, it cannot regulate the affairs of private parties subject to its authority or sanction them for their conduct in the absence of rules that are fixed, predictable, and knowable in advance. By this standard, the FCC often falls short."
A PDF of the full article, with all the footnotes, can be accessed here.
* * * Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a current public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration. Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 180 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the co-author, with FSF Senior Fellow Seth Cooper, of the recently released The Constitutional Foundations of Intellectual Property and is the editor of the book, Communications Law and Policy in the Digital Age: The Next Five Years. He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated And Communications Deregulation and FCC Reform.
Seth L. Cooper is a Senior Fellow at The Free State Foundation. He previously served as the Telecommunications and Information Technology Task Force Director at the American Legislative Exchange Council (ALEC), as a Washington State Supreme Court judicial clerk and as a state senate caucus staff counsel. He is an attorney, and he graduated from Seattle University School of Law with honors. Mr. Cooper's work has appeared in such publications as the San Jose Mercury News, the Iowa Des Moines Register and the American Spectator.
The Free State Foundation is a non-profit, independent free market-oriented think tank.
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