Tuesday, August 24, 2010

“Firing Up the Base” Is Not a Reason for Net Regulation

In an August 20 blog posting with the subtitle, "What Democrats Need to Understand," Public Knowledge's Harold Feld argues that one reason FCC Chairman Julius Genachowski should reject any forthcoming "industry consensus" on net neutrality and act quickly to adopt new neutrality mandates is that this "would fire up the base in time for election."

Of course, this is decidedly not a proper reason for the FCC to scuttle or short-circuit the negotiations that are now taking place among a broad and diverse segment of the market participants who comprise what we have come to call the Internet ecosystem.

And the mere fact that one of the chief and most vociferous advocates of new Net regulations suggests that the FCC should act to "fire up the base" is indicative of what is wrong with so much of the pro-regulation advocacy of Public Knowledge, Free Press, and their allies. These groups continually try to politicize an issue, which, most of all, needs to be decided based on technical, economic, and marketplace expertise. Witness the blog attack earlier this year by Mr. Feld on Philip Verveer, the Obama Administration's State Department Coordinator for International Communications and Information Policy and stellar public servant, for venturing to say that if the U.S. were to move to regulate Internet providers, this could have the unfortunate effect of causing foreign countries to see such action as a justification for exerting more control over the Internet in their own countries. Ambassador Verveer's offense in Mr. Feld's eyes: Getting "so off message" from what Feld views as President Obama's and Democrats' talking points.

It is true that President Obama campaigned in favor of net neutrality regulation and promised that "as president I'm going to make sure that my FCC commissioners are applying as we move forward." And since assuming office, he has reiterated that he would like to see new net neutrality regulations adopted.

It is perhaps in this context of President Obama's campaign promises about making sure what "his FCC commissioners" are doing that Feld misunderstands – or abuses -the FCC's proper role. The FCC is an independent regulatory agency, not an executive branch agency. The president cannot dictate the actions of the commissioners. With the advice and consent of the Senate, he gets to appoint the commissioners. But they are not "his commissioners," in the same way, say, that the Secretary of Commerce is "his Secretary," or the EPA Administrator is "his Administrator." And it is wrong to think of the commissioners this way, for it changes the way that the public thinks about the FCC and what it is doing.

There is no gainsaying that the FCC, even as one of the independent agencies, sometimes responds to political forces. As I have said before, this is not unexpected, or entirely wrong. But at least in theory, and certainly under the Progressive-era and New Deal vision, the FCC (along with its sister independents such as the FTC and SEC) were created (with requirements for bipartisan memberships, and staggered and fixed terms) in a way to establish their independence from presidential direction and control. This has been understood to be the way of thinking about these independents since the Supreme Court's famous 1935 decision in Humphrey's Executor v. United States.

With their presumed insulation from presidential control and ordinary politics, the congressional framers of the FCC and other independent agencies emphasized that these agencies' actions would be guided primarily by the specialized expertise and the institutional knowledge of their commissioners.

So it is sad to see Mr. Feld suggest that the FCC Chairman should act on net neutrality in order to "fire up the base in time for election." Such talk, much less actions based on such talk, only serves to diminish the FCC in the eyes of the courts, where its record on review historically has been less than sparkling. And, more importantly, in the eyes of the public, which already casts a skeptical eye at the motives underlying the actions of many government officials.