Donald Rieck and Wayne Winegarden

                  President Obama’s State of the Union Speech is tonight.  Along with his expected calls for higher taxes on the rich, President Obama’s agenda for 2015 will also include the expansion of his Administration’s regulatory overreach.  As President Reagan might say, “There he goes again”.

                  Lacking support of the people’s representatives, President Obama’s Administration has usurped Congressional authority and has, effectively, attempted to rule by presidential decree enforced through regulatory agency mandate.

For instance, the EPA has claimed authority to regulate greenhouse gas emissions even though Congress has explicitly rejected the regulatory proposals the EPA is trying to implement. 

Then there is the Affordable Care Act (aka Obamacare).  There are numerous examples of the Obama Administration unilaterally changing the statute’s regulations without gaining the necessary and appropriate Congressional authority. 

Now, it’s the FCC’s turn to play rogue agency.

                  The FCC is trying to impose many transformative regulations without following the proper regulatory process, and often lacking the statutory authority to promulgate the proposed regulations in the first place.

Perhaps the most damaging part of the FCC’s regulatory onslaught is the proposed Open Internet regulations.  The proposed regulations would impose a 1930s style regulatory structure on the Internet.  These regulations are not only inappropriate, they are harmful, because they view the 21st century Internet as a 20th century public utility. 

As a result, these new Internet regulations will transform the open and competitive platform that the Internet is today into a public utility.  The incentive to continually develop new services would be severely diminished, while the incentive to reduce customer service offerings will increase.  The FCC’s move to regulate the Internet will also increase the regulatory burden on businesses operating in this vibrant and already competitive space.

Ostensibly, the regulations are justified, the argument goes, because customers require the government to ensure that Internet companies are treating them fairly and that they have equal access to the Internet.

In reality, there is simply no evidence that Internet providers are arbitrarily restricting customers’ access to the Internet.  Nor, is there any evidence that Internet companies are exploiting customers in order to unfairly increase their revenues.  In light of this reality, Congress has explicitly rejected regulations of the internet in the past. Congress has also indicated it will be taking up the issue of Internet regulations again in the coming Congress.  In light of this, the FCC should defer to the authority of the people’s representatives as opposed to usurping Congress’ authority.

The net neutrality issue also exemplifies how the FCC is distorting the process for implementing regulations.  First, like the EPA is doing with its proposed greenhouse gas regulations, the FCC is arbitrarily re-interpreting old statutes in order to justify new regulations that they have not been authorized to implement. 

Then, as is appropriate for any proposed regulation, the FCC has opened up a comment period in order to learn from the industry, customers, and consumer groups.  The comments from these “interested parties” often provide valuable information that helps regulatory agencies implement the best regulations, and sometimes refrain from implementing any regulation at all. 

However, as opposed to holding an open regulatory comment period, it appears that the FCC’s conclusions have been pre-ordained even before the FCC has finished receiving the comments on its proposed changes.  For instance, the Washington Post reported that the FCC staff worked exclusively, and in an unusual manner, with activists who supported new regulations on the Internet.[1]

What makes the FCC’s approach even worse is that its actions are not unique to this proposed regulation.  The FCC has evaded the usual order of operations when it implemented regulations on “data roaming”.  Similar questionable FCC requirements have also been documented with respect to digital television standards.

Unfortunately, the FCC’s actions as a rogue agency are not unique.  There is a growing pattern of regulatory agencies pursuing unjustifiable expansions of their authority.  The FCC has been at the forefront of this disconcerting trend.  The FCC is pursuing an ideological agenda regardless of the wisdom of the regulations, Congressional intent, impending Congressional action, or FCC’s own established regulatory processes.

Perhaps as President Obama delivers his State of the Union address tonight he will emphasize his “pen and telephone” once again.  The FCC’s actions, and its growth detrimental impacts, exemplify the consequences.

 Donald Rieck M.A., M.B.A., is Executive Director of The American Spectator and Editor of EconoSTATS at George Mason University.  Wayne Winegarden, PhD is a Senior Fellow at the Pacific Research Institute and a Contributing Editor to EconoSTATS at George Mason University. 


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