Today, Free State Foundation
President Randolph May and Senior Fellow Seth Cooper published a paper in the Federalist Society Review entitled “The
FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review
Abuses.” Mr. May and Mr. Cooper discuss the FCC’s general conduct standard,
established in the February 2015 Open Internet Order, and its
inconsistency with due process and rule of law principles. They also question a few recent enforcement actions by the FCC and discuss why the regulated
companies often are better off settling than going to court, even when it is
not clear that the company violated FCC regulations.
The paper also
criticizes the FCC’s merger review process and the Commission’s actions to “regulate
by condition” in a way that imposes different regulatory mandates on similarly situated
market participants. If the FCC does not reform its merger review process soon,
Mr. May and Mr. Cooper suggest that Congress pass FCC reform legislation that
includes merger review provisions.“The FCC and the Rule of Law” was the theme of FSF’s Eighth Annual Telecom Policy Conference. The Rule of Law panel and transcript provide more insight into the need for process reform at the FCC.
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