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Barack Obama as FCC Chairman

The saga of executive branch overreach continues, and we got a twofer today.

The House Judiciary Task Force on Executive Overreach held a hearing this morning (March 1) on “The Original Understanding of the Role of Congress and How Far We’ve Drifted From It.”

A major point made at the hearing was that the Constitution’s Article I, Section 1‘s very first word, something likely not accidental, was “all.”

As in, “All legislative Powers herein granted shall be vested in a Congress of the United States.”

But the current president of the United States has not been shy about going around Congress. He has done so both to legislate unilaterally and to influence federal agencies, including those that are supposed to be independent of the president—such as the Federal Communications Commission (FCC).

As if to underscore the Executive Overreach Task Force hearing, the House Committee on Homeland Security and Government Affairs (HSGAC) released a 30-page report this morning called “Regulating the Internet: How the White House Bowled Over FCC Independence.”

The nutshell here is that in 2014 FCC Chairman Tom Wheeler was not inclined to re-classify the Internet as a public utility (called a Title II reclassification) in the name of net neutrality.

Not, that is, until mounting pressure from President Barack Obama, including a web page and campaign for net neutrality, caused him to change course.

The FCC Open Internet Order of February 2015 confounded some career FCC staff since it constituted a “shift from the FCC’s previous light-touch approach of classifying broadband as an information service and from Wheeler’s own statement in February 2014 that the FCC would continue such an approach.”

The notion that Wheeler changed his tune after the president inappropriately intervened in the proceedings of an independent agency isn’t a new claim. But the HSGAC report highlights how agency counsel argued “the record to support Title II reclassification for both fixed and wireless broadband was thin and needed to be bolstered,” and that the shift might be a violation of the Administrative Procedure Act (APA) requirements. (HSGAC Report, pp. 2-3)

To properly explore and justify the drastic change would require additional public notice and comment. However “despite this recommendation [from career staff], the FCC chose not to seek additional public comment, and proceeded with the president’s preferred policy outcome.” (HSGAC Report, p. 3)

If only APA violations were the sole problem. They are just the tip of the iceberg. The extremely lawless FCC rule creates an environment in which FCC can regulate without writing anything down at all once the rule is in effect. In the net neutrality order, the FCC affirms that it will substitute free competitive enterprise in network infrastructure creation with “advisory opinions.”

Specifically, on page 106 of the 400-page order, FCC allows that “[a]dvisory opinions will enable companies to seek guidance on the propriety of certain open Internet practices before implementing them, enabling them to be proactive about compliance.”

Unfortunately, FCC’s over-reach is not unique. The APA process is severely broken in that agencies’ failure to issue a Notice of Proposed Rulemaking is rather frequent.

According to a Government Accountability Office report:

Agencies did not publish a notice of proposed rulemaking (NPRM), enabling the public to comment on a proposed rule, for about 35 percent of major rules and about 44 percent of nonmajor rules published during 2003 through 2010. 

This matters since the very creation of the APA had already constituted a break with traditional democratic accountability agencies often cite the APA’s “good cause” exemption, which allows them to issue a rule without pursuing public notice and comment. In GAO’s sample, agencies had invoked it “for 77 percent of major rules and 61 percent of non-major rules published without an NPRM.”

The sky is rarely falling in a way that requires such haste or excuses circumventing the already inadequate APA. Nonetheless, agencies too often think it is practical, necessary, and in the public interest (the APA-specified exceptions to issuing a Notice of Proposed Rulemaking) to do as they please—or, in the case of supposedly independent FCC—as the president pleased.

Lawmaking, especially on something as sweeping and consequential as net neutrality, should only be conducted by Congress. If only Congress, our legitimate, elected lawmakers, would “Bowl Over FCC Independence,” we’d be getting somewhere.

The Senate Commerce Committee is hosting all five FCC commissioners at a hearing tomorrow. Watch for plenty discussion of agencies gone wild.