In its search for regulatory relevance in the digital competition age, the Federal Communications Commission (FCC) over-relies on obsolete communications law for its going-forward regulatory authority.
This is predictably problematic, because it is like walking far out on a limb, without regard for how far one is getting from the tree trunk or for how rapidly the diameter of the supporting branch is diminishing. One would think the FCC would learn from its many big falls, to stop going out on so many limbs, but they haven’t.
This week produced the latest example of an FCC decision dependent on obsolete law and not supported by the facts, law or Constitution. It was the FCC’s 3-2 decision to fine Comcast for alleged content discrimination, and order Comcast to give the Tennis Channel “equal carriage” to the Golf Channel on Comcast’s cable system.
This is the first time the FCC has ordered a private cable company to carry particular programming in a particular way. This end’s driven decision to regulate content to prevent alleged “discrimination,” led the FCC to once again disregard what appropriate means are. This decision will be challenged in court, because it is not supported by the facts per the dissent; it incorrectly assumes the economic predicate of obsolete cable law that cable is a monopoly when it is not; and it tramples on Comcast’s First Amendment rights.
What’s most troubling here is that this latest FCC decision is part of a disturbing pattern of the FCC imagining that obsolete communications law confers unbounded FCC authority and court deference to achieve whatever regulatory ends the FCC desires, regardless of regulatory means. Let’s review the FCC’s disturbing ends-justify-the-means history on this score.
In late 2011, the FCC effectively blocked the AT&T-T-Mobile merger by egregiously violating the companies’ due process and procedure in publicly-releasing a fact-challenged staff report opposing the merger without any Commission vote or opportunity to refute the unsupported staff assertions.
In April 2011, the FCC passed 3-2 a data roaming order that treated broadband wireless service as a regulated telecom service, despite a previous FCC ruling that wireless broadband was unregulated, and despite a Federal Appeals Court precedent (ironically Comcast vs. FCC) that the FCC had no statutory authority to regulate broadband services.
In late 2010, the FCC voted 3-2 to preemptively impose net neutrality regulations on the broadband industry in its Open Internet Order, despite the fact that there was no credible evidence of a problem to solve and despite the FCC not having the statutory authority to do so under Comcast vs. FCC.
In 2009 Congress authorized the FCC to prepare a Congressional “report containing a National Broadband Plan,” which the FCC delivered late. The overreach problem here for the FCC is that Congress did not authorize the FCC to actually implement the National Broadband Plan it submitted to Congress, but that is what the FCC has enthusiastically tried to do anyway on its own.
In 2008, the FCC in a 3-2 decision sanctioned Comcast for an alleged violation of net neutrality, when the FCC had no operative or formal net neutrality regulations at all, and as it turned out in the Comcast vs. FCC decision, the FCC had no statutory authority to write broadband net neutrality regulations anyway.
In sum, the FCC has a long and consistent record of going out on limbs to apply obsolete or non-existing law in order to self-assert common-carrier-like regulatory authority. This behavior exposes a regulation-dependent FCC in a desperate search for relevance in the digital competitive age.
It is telling and disturbing that the FCC still has as many staff overseeing a competitive digital marketplace that does not need regulation, as they did when the FCC actually needed to regulate a government-sanctioned telephone monopoly. If the FCC cannot recognize and adapt to rapidly changing technological and competitive market realities, and if the FCC can’t be relied upon to respect facts, due process, statutory limits, and the U.S. Constitution, the FCC might find that it has become obsolete as well.