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.
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