Feature:Opinion

Why the FCC Needs Congress

Scott Cleland Contributor
Font Size:

The FCC imagines it doesn’t need Congress, but it does.

In just the second week of this new Congress, House Energy and Commerce Committee Chairman Fred Upton and Senate Commerce Committee Chairman John Thune proposed draft legislation that would provide the FCC with the permanent net neutrality enforcement authority the FCC says it needs.

The leaders of the FCC’s oversight committees have opened the new Congress with a transparent, outreached hand of assistance and bipartisanship by making the FCC’s top priority its initial priority.

To date however, the FCC appears intent on preemptively blocking and throttling Congress’s good-faith efforts to transparently resolve the FCC’s open Internet authority problem.

Whenever the prospect of congressional compromise comes up, the FCC snubs Congress by reiterating it will decide the matter of America’s open Internet policy and authority unilaterally in a Feb. 26 vote of five unelected FCC commissioners.

The FCC’s current message is obvious — it does not want Congress’ help, because the FCC wants to conjure up its own legal authority.

Why is the FCC wrong here?

Legally, it needs Congress.

The FCC is 0-2 in self-asserting the Internet regulatory authority it wants. The FCC lost Comcast v. FCC in 2010 and Verizon v. FCC in 2014. In both instances, the courts determined the FCC overreached its statutory authority.

How can the FCC imagine it will fare better with a Title II utility regulation of the Internet proposal that involves more legal overreach, more harm to reliance interests and a wholesale repudiation of over a decade of FCC legal precedents and findings of fact?

The FCC knows it’s choosing a much riskier legal strategy than ever before. The agency initially concluded the best legal approach was to obey the guidance of the U.S. Appeals Court in Verizon v. FCC.

In stark contrast, the FCC reportedly now seeks to blaze an entirely new legal path with a 180-degree policy reversal to Title II, combined with a follow-on, partial, 180-degree reversal of that new Title II policy via broad forbearance from Title II.

The FCC hopes any legal challenge will hinge on Chevron Deference to the FCC. However, it ignores that its abrupt and transparent political switch to Title II after long opposing it will transform this case into glaring violations of the Administrative Procedures Act, and obvious arbitrary and capricious treatment of huge longstanding reliance interests.

The FCC operationally needs Congress.

Congress funds the FCC, and the FCC is seeking a very big increase in its 2015 budget.

Congress investigates and oversees whether the FCC abides by legally required processes and procedures.

Congress is the source of all the FCC’s current and future authority, and the FCC’s congressional authorizing committees are actively in the process of updating the Communications Act that created the FCC in 1934.

The FCC also politically needs Congress.

If the FCC politically rejects Congress’ help, it alone will politically own any problems, unintended consequences, or public backlash resulting from an abrupt unilateral FCC reversal of the bipartisan policies that enabled the Internet we know today.

Any FCC utility regulation of the Internet that harms America’s consumers, economy, or national interests will be solely on the FCC, not Congress or the executive branch, of which the FCC insists it is “independent.”

Politics is credit-taking and blame-shifting.

In publicly rejecting Congress’ help and bipartisanship, the FCC’s majority will own political credit for what goes right, and political blame for what goes wrong.

Surely the FCC has seen the store signs, “You break it, you bought it.”

The FCC will own the negative commercial and financial consequences of a unilateral decision to take control of the Internet via utility regulation.

It will own any unintended tax or fee increases on consumers, any decline in broadband investment, deployment, jobs, growth and any legal uncertainty.

Apparently, the FCC imagines it alone is the solution to the Internet’s problems.

However, if the FCC goes ahead and unilaterally takes regulatory control over the Internet, it will find itself becoming the Internet’s main problem.

Wake up FCC. You need Congress.

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.

PREMIUM ARTICLE: Subscribe To Keep Reading

Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign Up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
BENEFITS READERS PASS PATRIOTS FOUNDERS
Daily and Breaking Newsletters
Daily Caller Shows
Ad Free Experience
Exclusive Articles
Custom Newsletters
Editor Daily Rundown
Behind The Scenes Coverage
Award Winning Documentaries
Patriot War Room
Patriot Live Chat
Exclusive Events
Gold Membership Card
Tucker Mug

What does Founders Club include?

Tucker Mug and Membership Card
Founders

Readers,

Instead of sucking up to the political and corporate powers that dominate America, The Daily Caller is fighting for you — our readers. We humbly ask you to consider joining us in this fight.

Now that millions of readers are rejecting the increasingly biased and even corrupt corporate media and joining us daily, there are powerful forces lined up to stop us: the old guard of the news media hopes to marginalize us; the big corporate ad agencies want to deprive us of revenue and put us out of business; senators threaten to have our reporters arrested for asking simple questions; the big tech platforms want to limit our ability to communicate with you; and the political party establishments feel threatened by our independence.

We don't complain -- we can't stand complainers -- but we do call it how we see it. We have a fight on our hands, and it's intense. We need your help to smash through the big tech, big media and big government blockade.

We're the insurgent outsiders for a reason: our deep-dive investigations hold the powerful to account. Our original videos undermine their narratives on a daily basis. Even our insistence on having fun infuriates them -- because we won’t bend the knee to political correctness.

One reason we stand apart is because we are not afraid to say we love America. We love her with every fiber of our being, and we think she's worth saving from today’s craziness.

Help us save her.

A second reason we stand out is the sheer number of honest responsible reporters we have helped train. We have trained so many solid reporters that they now hold prominent positions at publications across the political spectrum. Hear a rare reasonable voice at a place like CNN? There’s a good chance they were trained at Daily Caller. Same goes for the numerous Daily Caller alumni dominating the news coverage at outlets such as Fox News, Newsmax, Daily Wire and many others.

Simply put, America needs solid reporters fighting to tell the truth or we will never have honest elections or a fair system. We are working tirelessly to make that happen and we are making a difference.

Since 2010, The Daily Caller has grown immensely. We're in the halls of Congress. We're in the Oval Office. And we're in up to 20 million homes every single month. That's 20 million Americans like you who are impossible to ignore.

We can overcome the forces lined up against all of us. This is an important mission but we can’t do it unless you — the everyday Americans forgotten by the establishment — have our back.

Please consider becoming a Daily Caller Patriot today, and help us keep doing work that holds politicians, corporations and other leaders accountable. Help us thumb our noses at political correctness. Help us train a new generation of news reporters who will actually tell the truth. And help us remind Americans everywhere that there are millions of us who remain clear-eyed about our country's greatness.

In return for membership, Daily Caller Patriots will be able to read The Daily Caller without any of the ads that we have long used to support our mission. We know the ads drive you crazy. They drive us crazy too. But we need revenue to keep the fight going. If you join us, we will cut out the ads for you and put every Lincoln-headed cent we earn into amplifying our voice, training even more solid reporters, and giving you the ad-free experience and lightning fast website you deserve.

Patriots will also be eligible for Patriots Only content, newsletters, chats and live events with our reporters and editors. It's simple: welcome us into your lives, and we'll welcome you into ours.

We can save America together.

Become a Daily Caller Patriot today.

Signature

Neil Patel