Why the FCC Needs Congress

Scott Cleland Contributor
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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.