The FCC claims it is trying to “Unlock the Box” to “empower consumers to choose how they wish to access the multichannel video programming to which they subscribe.”
The Downloadable Security Technology Advisory Committee (“DSTAC”), established by the Commission pursuant to instructions from Congress, recommended two routes for empowering consumers. The “Apps-Based Proposal” would have ensured that consumers could access the programming they pay for on devices of their choosing (e.g., smart televisions, smart phones, streaming media players like the Roku box or small dongles that attach to TVs, like Google’s Chromecast) — via an app provided by their Multichannel Video Programming Distributor (“MVPD”). The FCC has ample legal authority to implement this proposal and to address the primary objection raised to it: that MVPDs would drag their feet in approving the use of their app on third party devices. Meanwhile, the market has mooted the other principal objection: that such apps simply will not be developed at all. Time Warner Cable launched such an app last November and Comcast launched its own on Wednesday, April 20, 2016, as part of a larger program to enable third party equipment makers to offer Comcast programming on their devices without a standalone box.
The NPRM does not even propose this app-based approach as an alternative to its preferred course of action: the “Competitive Navigation” proposal, also recommended by the DSTAC. (Nor does the NPRM seriously consider whether regulating MVPDs to promote competitive navigation devices is even appropriate in today’s hyper-competitive video marketplace.) Instead, the NPRM suggests that the Commission has already made up its mind on policy, and is now just trying to work backwards and find legal authority to support its planned course of action. The FCC’s legal arguments are as sweeping as they are cavalier.
The FCC would do well to heed the caution offered by Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit in a 2010 speech:
[I]n both Republican and Democratic administrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follow principles of administrative law. In such cases, it looks for all the world like agencies choose their policy first and then later seek to defend its legality. This gets it entirely backwards. It’s backwards because it effectively severs the tie between federal law and administrative policy, thus undermining important democratic and constitutional values. And it’s backwards because whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles — whatever the President’s party, however popular the administration, and no matter how advisable the initiative….
As its most fundamental inquiry, administrative law calls upon courts to determine whether an agency’s action falls within the scope of its authorizing legislation. This task often involves no more than reading the law. Then-Professor Felix Frankfurter, one of the fathers of administrative law, famously admonished his students: “(1) Read the statute; (2) read the statute; (3) read the statute!” This is self-evidently good advice, but you would be surprised how often agencies do not seem to have given their authorizing statutes so much as a quick skim.