President Obama’s State of the Union Address is tonight. Along with his expected calls for higher taxes on the rich, the president’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 onslaught is the proposed Open Internet regulations, which would impose a 1930s style regulatory structure on the web. 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 regulations would 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 would increase. The FCC’s move to regulate the Internet would 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 consumers have equal access.
In reality, there is simply no evidence that Internet providers are arbitrarily restricting customers’ access. 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 regulation of the Internet in the past. Congress has also indicated it will be taking up the issue again in the coming term. In light of this, the FCC should defer to the authority of the people’s representatives instead of 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, it appears that the FCC’s conclusions have been pre-ordained even before the it 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.
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.
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. And unfortunately, while the FCC at the forefront of this disconcerting trend, its actions as a rogue agency are not unique. There is a growing pattern of regulatory agencies pursuing unjustifiable expansions of their authority.
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.
This piece originally ran at Forbes.com and is part The American Spectator’s developing Free Market Accountability Project, which will monitor growing threats to America’s economic freedom.
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