With Last-Minute Regulations, FCC Has Its Eye on the Clock
by
Randolph J. May *
June 15, 2016
According to a 2012 study by the Administrative Conference of the United States, "there has been a documented increase in the volume of regulatory activity during the last months of presidential terms." The rules adopted during this late-term regulatory spurt are commonly called "midnight rules." Because they are proposed and adopted with at least one eye glued to the clock, they often are ill-conceived.
The Obama administration's Federal Communications Commission (FCC), led by Chairman Tom Wheeler, is an example of midnight rule-making on steroids!
In the past few months, the FCC has proposed three new major regulatory initiatives. First, the commission proposed costly rules that would require the multi-year development of a new "open standard" for set-top boxes used by subscribers to access and navigate the programming provided by cable, satellite and telephone multichannel video distributors. Second, the agency proposed privacy regulations applicable to broadband Internet service providers (ISPs) that are more stringent than those that the Federal Trade Commission (FTC) applies to internet giants like Google and Amazon. And, finally, despite the lack of evidentiary support, the commission proposes to regulate the rates for business broadband services.
Each of these initiatives is ill-conceived and harmful. I'll briefly highlight some problematic aspects of each. But before doing so, it bears emphasis that the commission has refused to grant requests to extend the dates for public comment, even though such requests usually are granted on a fairly routine basis. And this despite the profound marketplace consequences associated with each proposal. In and of itself, this indicates that Wheeler's eyes are more likely fixed on the clock than on the evidence submitted in the proceedings.
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The FCC is not the first agency to engage in midnight rule-making during the last year of a presidential term. And it almost certainly won't be the last. But right now, it is a prime example of midnight rule-making on steroids. Consumers are likely to be the losers in the rush to adopt a potpourri of ill-conceived new regulations before time runs out.
* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland. With Last-Minute Regulations, FCC Has Its Eye on the Clock was published in The Hill on June 15, 2016.
A PDF of this Perspectives is here.
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