In the wake of the Federal Communications Commission's (FCC's) dramatic shift toward reclassifying broadband Internet access under Title II of the Communications Act, people are asking whether there is cause for concern about how the FCC reached its decision. For two professors of telecommunications and administrative law, the controversy around the FCC's order provides a teachable moment.
We write not to add to the onslaught of commentary on the merits of the rules--which are not yet public--but rather to address the legitimacy of the FCC's decision-making process. To cut to the chase: there's no evidence of a process foul in this case.
We should know. In addition to our academic posts, one of us worked on Internet-related issues in the White House and Department of Justice, and the other at the FCC and Department of Commerce. We've seen similar processes up close and have long studied and taught about how the regulatory process works. And our views aren't driven by a desired outcome: we supported FCC Chairman Wheeler's original non-Title II plan. Whether we endorse the current outcome or not, Chairman Wheeler is entitled to change his mind, and so is the FCC.
Over the decades, the FCC has regularly stepped in to act in the face of technological change, marketplace developments, legal uncertainties, and changing conceptions of the public interest. In the 1960s, for example, it took actions to regulate the fledging cable TV industry and to require "foreign attachments" to connect to the telephone network. In the 1980s, it deregulated computer-based "enhanced services" while safeguarding them from the AT&T monopoly. In the 2000s, it adopted broadcast flag rules to protect intellectual property rights.
In the Communications Act, Congress gave the FCC a broad grant of authority over "communication by wire and radio," which the agency applies through the notice and comment rulemaking process of the Administrative Procedure Act. The Open Internet proceeding is no different. All but a few pages of the large document the FCC will consider later this month will address comments from millions of individuals and thousands of companies. (The unfortunate practice at the FCC of writing very long orders is encouraged by past judicial decisions, but a discussion of that issue is for another time.)
Where the FCC exceeds its authority, as it did in imposing "must carry" obligations on cable TV companies and in instituting the broadcast flag requirement, the courts police the boundaries of its jurisdiction. At all times, the Congress has the authority to step in to revise, limit, or expand the FCC's authority, which it did, for example, with the must carry rules. This is true for other agencies, too. The Federal Trade Commission, for example, saw its authority increased after a judicial decision that called into question its authority to implement its "Do Not Call" regime. Until Congress acts, however, the agencies must move forward based on their understanding of their legal authority.
In the open Internet case, a number of commentators have expressed concerns that President Obama tried to influence an independent administrative agency. While it was perhaps novel to use a YouTube video to communicate directly to the public, the Administration's formal position was expressed in FCC filings by the Commerce Department. Using the same route, this Administration and prior ones have suggested courses of action to the FCC on a range of issues. In some cases, the FCC follows the Administration's recommendations; in others, it declines to do so. In all cases, the Administration can express its views and the FCC has the leeway to decide how to proceed.
After all, if the White House had a secret plan to manipulate the FCC, a public announcement and a mention in the State of the Union were a strange way to hide it. The President's statement came after six months of public comments on Chairman Wheeler's original proposal. His was hardly the only strong voice arguing for reclassification. Even if his statement shifted the political environment, the FCC still makes the final call on the law and the public interest.
Some have suggested that the FCC, when it acts in accordance with the Administration's recommendation, "loses its deference" when the matter lands in court. Such a view has no basis in administrative law. The core of an agency's claim for deference lies in its expertise and its reliance on a public record that justifies its action in any given case. Where the agency fails to do so, courts have no problem invalidating the agency's decisions.
In the case of the Open Internet rules, we have yet to see how the agency's rules stack up in court as a matter of well-reasoned law and economics. That day will come soon enough. And when it does, the strength or weakness of the FCC's analysis, not whether it made a "political decision" that aligned with the Administration, will be determinative of the result.
As we look ahead, Congress may well use its ultimate authority to enact a regime of its own design. Indeed, recent proposals by Republicans in Congress embracing the core open Internet principles suggest that there may well be opportunities for legislation that finally resolves the legal ambiguities the FCC labors under.
Until the widely-accepted principles settle into a widely-accepted regulatory regime, there will be litigation, negotiation, and uncertainty. That's a familiar tradition in telecommunications policy. It's a messy process and not always pleasant to watch (or participate in). But as Churchill said of democracy, it may well be better than the alternatives.