Monday, November 17, 2014

Thinking the Unthinkable - Part IV

I was gratified by the excellent attendance at the Free State Foundation’s program last Friday titled, “Thinking the Unthinkable: Imposing the ‘Utility Model’ on Internet Providers.” If you weren’t there, you missed what was a very important event – one that, in light of the substantive discussions that occurred, likely will play an important role going forward in the debate over the Federal Communications Commission’s consideration of the imposition of new net neutrality mandates. 
With the release of President Obama’s video on Monday, what he calls “President Obama’s Plan for a Free and Open Internet,” directly urging the FCC to classify Internet service providers as common carriers – that is, to impose the Title II public utility model of regulation – the FCC’s proceeding has now become even more highly politicized than before. More and more, in the absence of any present market failure or consumer harm, the proceeding is looking like a textbook case study in administrative agency overreach. Or put more bluntly, an administrative agency power grab. 
And with President Obama interjecting himself so directly into the net neutrality rulemaking, the proceeding is also providing a textbook example of the problematic nature of so-called independent agencies like the FCC, which in any event occupy an odd place in our tripartite constitutional system. After all, in the interests of accountability, the Constitution vests all powers in the legislative, executive, and judicial branches, not in agencies, commonly referred to as the “headless fourth branch” of government, that blend together quasi-executive, quasi-legislative, and quasi-judicial powers. 
Witnessing what is transpiring at the FCC calls to mind for me a famous statement by Roscoe Pound, the distinguished American legal scholar and long-time Dean of the Harvard Law School, concerning the rise of administrative agencies like the FCC. In 1920, he said: “[T]he whole genius of administrative action through commissions endangers the supremacy of law. Not the least task of the common-law lawyers of the future will be to impose a legal yoke on these commissions, as Coke and his fellows did upon the organs of executive justice in Tudor and Stuart England.” 
It is possible that, when all is said and done, the FCC’s actions in the net neutrality proceeding might lead to a fundamental rethinking by Congress of the proper institutional role in the Digital Age of an agency created in 1934 (or, in part, in 1927 if you wish to go back to the Federal Radio Commission). To its credit, the House Commerce Committee early this year began such a #CommActUpdate process in earnest, and when the new Congress convenes in January, the Senate should follow suit. 
In the meantime, it is at least somewhat encouraging that FCC Chairman Tom Wheeler appears to recognize the need to take a pause in the net neutrality rulemaking. This would be a good idea, especially if Mr. Wheeler and his Commission colleagues use such a pause as a time for some serious rethinking concerning the proper exercise of the agency’s putative authority with respect to Internet regulation. 
On the assumption that the willingness to engage in reflection and rethinking should always be in order, those at the FCC and elsewhere would do well to review the remarks delivered by Commissioners Ajit Pai and Michael O’Rielly at the Free State Foundation’s event on November 14th. Regardless of any predispositions regarding what actions – or not – you believe the FCC should take, their statements at the least warrant careful consideration. 
Commissioner Pai's remarks are here. 
Commissioner Michael O'Rielly's remarks are here. 
And the remarks of Rep. Bob Latta, the Vice Chairman of the House Communications and Technology Committee, are important as well. They are here. 
I’m going back and re-read each of these, and I hope you will read them too. 
PS – The video of the opening remarks and the lively panel discussion featuring Robert Crandall, Gerald Faulhaber, Deborah Taylor Tate, and Michael Weinberg will be posted shortly.