Is the FCC Above the Law?

by on January 15, 2010 · 7 comments

Can the Federal Communications Commission (FCC) just do anything it wants? If it wants to bring the entire Internet under its thumb, or regulate any speech uttered over electronic media, can it just do so on a whim? The agency’s recent actions on the Net neutrality and free speech fronts seems to suggest that the agency thinks so.

I don’t need to rehash here what the FCC has been up to on the Net neutrality front.  Most everyone is familiar with how the agency has essentially been trying to invent its authority to regulate out of thin air.  If you want the whole ugly history of how this charade has unfolded over past few years, I encourage you to read these amazing comments filed today in the FCC’s net neutrality NPRM proceeding by my PFF colleague Barbara Esbin.  Barbara simply demolishes the FCC’s argument that it can do anything it wants under the guise of its “ancillary jurisdiction.” As Barbara argues in her comments, the FCC’s position “is akin to saying that the FCC can regulate if its actions are ancillary to its ancillary jurisdiction, and that is one ancillary too many.”  She notes that:

The proposed rules regulating the services and network management practices of broadband Internet providers must rest, if at all, on the Commission‘s implied or ancillary jurisdiction and the NPRM fails to provide a basis upon which the exercise of such jurisdiction can be considered lawful.

She shows how farcical it is for the FCC to concoct its supposed authority to regulate from provisions of the Communications Act that have nothing whatsoever to do with Net neutrality or even expanding regulation in general. Specifically, the agency’s reliance on sections 230(b) and 706(a) of the Telecommunications Act of 1996 is completely outlandish.  Anyone who knows a lick about telecom law and the nature of those two sections understands they were never intended to serve as the basis of an expansive new regulatory regime for the Internet. As Barbara puts it:

This exercise—searching for snippets and threads of regulatory authority over a communications medium as significant as the Internet in multiple, unrelated statutory provisions—should signal to the Commission that no credible source of authority to regulate Internet services exists.

All I have to say is, thank God for checks and balances. I believe the courts will put a stop to this nonsense, but it will take some time.  Until then, I suppose the FCC will continue to act like a rogue agency, hell-bent and tossing the constitution to the wind and concocting asinine theories about why they should be allowed to do anything they want. But there are signs that the courts are ready to start holding the FCC more accountable.

If you want some concrete proof, Exhibit A would be the recent D.C. Circuit Court of Appeals oral arguments in the Comcast v. FCC case, which involves the FCC’s assertion of Net neutrality authority from vague “principles” it laid down a few years back. The headline from Wired about the court arguments really says all you need to know: “Court to FCC: You Don’t Have Power to Enforce Net Neutrality.”  Indeed, by all accounts, things did not go well for the agency. “No decision has been made yet,” reports Tony Bradley of PC World, ” but, if Friday’s arguments… are any indication, it doesn’t appear that the FCC will prevail in exerting its authority over Comcast.”

Exhibit B would be the stunning oral arguments that the Second Circuit Court of Appeals in New York heard this week in the remand hearing of the case Fox Television v. FCC. You have to watch this video of the arguments to appreciate just how fed up some judges are with this agency.  It is like nothing else I have ever seen.  Andy Schwartzman of Media Access Project described it as “a slaughter,” and an unnamed source told John Eggerton of Broadcasting & Cable, “To say that the justices were extremely skeptical of the FCC’s application of the indecency law from a constitutional perspective in this case is an understatement.”  I’ll say.  Watch it yourself to see.

Meanwhile, as I’ve been writing here lately, the FCC is busy trying to expand or invent new authority to regulate digital media and online safety issues in its “Child Safe Viewing Act” and “Empowering Parents and Protecting Children” proceedings. The agency also recently began looking at cloud computing, forcing me to wonder, “Is the FCC Becoming the Federal Cloud Commission?”  And then there was the Commission strong-arming of Apple about the iPhone app store process. Who knows where that authority came from.  Finally, just yesterday, the FCC launched a new inquiry into privacy issues — get this — as part of its National Broadband Plan! The agency is asking for public comment about “the use of personal information and privacy in an online, broadband world.” (Someone should probably call the Federal Trade Commission and let them know that that there is a new sheriff in town!) Again, no word where the FCC’s authority to do any of this comes from.  When it comes to statutory authority, it’s an ‘anything-goes’ world over at the FCC these days. They just make it up as they go along.

Simply put, the FCC is out of control and I sincerely hope the courts rope it back in soon. If the agency wants the authority to regulate in any of these areas, it should go to Congress and ask for it.  That’s how things are suppose to work in a constitutional republic.  Until then, FCC officials should stop behaving as if they are above the law.

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