Monday, March 21, 2016

The FCC and the Rule of Law

Not surprisingly, much of the debate concerning the Federal Communications Commission's actions takes place in the realm of policy - that is, we debate whether or not this or that action constitutes, to our minds, sound policy.
This policy debate is not only important; it is essential.
But whether or not an FCC action constitutes sound policy, we must also ask another question: Is it lawful? Each of us probably can name an agency action that we think constitutes sound policy, but which turns out, upon court review, not to be lawful.
Each year at the Free State Foundation's major annual telecom policy conference, we discuss the most important communications law and policy topics. I'm certain this year's conference, this Wednesday, March 23, will be no exception - what with the pending Open Internet Order and Municipal Broadband Preemption appeals; near-term agency consideration of draft orders to expand the FCC's privacy regulation over Internet service providers and to expand the Lifeline program; a recently-initiated proposal to mandate a new set-top box "open standard" for devices accessing video services; new spectrum policy initiatives; the "special access" investigation imbroglio; unprecedented high-profile enforcement fines; and much more.
At this year's conference, you can bet that we will discuss these "hot-topic" issues as a matter of policy. But the theme of this year's conference is "The FCC and the Rule of Law." In that vein, I anticipate that, throughout the conference, a meaningful part of the discussion - perhaps more than usual - will focus not only on policy, but on law.
And not on "law" only in the narrow sense of whether the FCC's actions ultimately will withstand judicial review. But also in the somewhat broader sense of whether the actions conform to the "rule of law" and promote respect for the "rule of law." To be straightforward about it, preservation of the rule of law is the underpinning for maintaining ordered liberty and freedom. Every government agency - and every government official - has the responsibility to uphold rule of law norms.
I'm looking forward to my lunchtime conversation with Jonathan Sallet, and I'm sure we'll be talking some "law-talk." After all, as FCC General Counsel, Jon is the agency's top lawyer! And at the immediately following session moderated by my FSF colleague Seth Cooper, we are privileged to have Ambassador Philip Verveer, FCC Senior Counselor, join AT&T's Robert Quinn and Boston College Law School professor and FSF academic advisor Daniel Lyons in a panel titled, "The FCC Rule and Law."
Whether you prefer policy over law, or vice versa, or prefer them in precisely equal parts, we have an absolutely stellar lineup for Wednesday's conference to discuss all the current hot topics. The complete conference agenda is here, and the registration form is here. Registration, along with breakfast and lunch, is complimentary. But please register if you plan to attend because space is limited.
PS - Please don't consider this an assignment! But if you want to think a bit about what the "rule of law" means in advance of the conference, here's one common definition: (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 similar vein, Friedrich Hayek, in 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."