Yesterday, the FCC’s Wireless Telecommunications Bureau issued a new Wireless Competition Report and a Declaratory Ruling that effectively amends the FCC’s 2011 Data Roaming Order. Despite requests from two Commissioners, neither was put up for a full Commission vote.
“This is the FCC’s equivalent of Harry Reid’s ‘Nuclear Option’ combined with President Obama’s penchant for unilateral ‘Executive Action,’” said Berin Szoka, President of TechFreedom. “At best, Wheeler has shattered the long-standing convention that any Commissioner can insist on a vote about a proposed Bureau action. When Harry Reid overrode centuries of Senate procedure in 2010 to end filibusters on everything but nominations, at least he could say that he was only forcing a vote on the issue. Tom Wheeler isn’t allowing any vote at all. This is hardly surprising from a Chairman who, in a fit of candid grandiosity, repeatedly told web companies in a recent meeting, ‘I am an independent agency.’”
“At worst, Wheeler is violating the most fundamental requirement of the Administrative Procedure Act,” continued Szoka. “Substantive changes to rules must, by law, go through notice-and-comment rulemaking. The Bureau’s declaratory order significantly changes the balance struck by the FCC’s 2011 Data Roaming Order: It adds a new factor to the FCC’s assessment of the commercial reasonableness of data roaming agreements and, worse, effectively removes the key presumption that such agreements are legal.”
“The Chairman has also violated the Communications Act by denying duly appointed Commissioners even the opportunity to vote on a legal finding that the Act specifically requires the full Commission to make,” said Geoffrey Manne, Executive Director of the International Center for Law & Economics and a TechFreedom Senior Fellow. In 1993, Congress directed the FCC to issue annual reports analyzing the competitiveness of mobile markets, and to determine ‘whether or not there is effective competition.’ The Section 706(b) Broadband Deployment Report is the only other report that requires such a legal determination by the Commission.
“While the Commission has regularly abdicated its responsibility by refusing to make bottom-line conclusions regarding the competitiveness of the wireless market, and has cynically manipulated both reports in the past to justify its regulatory agenda,” Manne continued, “these aren’t just normal reports; they trigger action on key issues, from mergers to spectrum auction rules to how to regulate net neutrality.”
As Commissioner Pai noted in his joint statement with Commissioner O’Rielly objecting to Wheeler’s actions, Wheeler attempted to assuage Congressional concerns at his 2013 confirmation hearings that the FCC might manipulate spectrum auction rules by declaring that he was “very aware that the FCC is a Commission, not a sole proprietorship,” and noting that “there is nothing worse for investment, innovation, job creation, all the things that flow from investment, than businesses not knowing what the rules are.”
Szoka and Manne responded: “Tom Wheeler may have meant what he said at the time but, like Tolkien’s Ring of Power, one can’t wear the mantle of FCC Chairman for long without being transformed by its power. Republican Kevin Martin so abused his office that he was censured by Congressional Democrats in a scathing 110-page report. It’s time both Republicans and Democrats in Congress start reconsidering the wisdom of vesting so much power over so vital a field in so dysfunctional an agency — and so much discretion in its Chairman. If the Chairman isn’t going to let other Commissioners vote on key items, and if he’s going to be controlled by the President anyway, perhaps it’s time to dispense with the ideal of the FCC as an independent, expert, collegial multi-member body — and instead break up its functions among other agencies. But if the FCC is going to survive, it’s going to need a fundamental overhaul from Congress.”
- Double secret ex parte meetings at the FCC: Something’s amiss in the agency’s big transaction reviews, Geoffrey Manne
- Bipartisan Consensus: Rewrite of ‘96 Telecom Act is Long Overdue, summarizing TechFreedom & ICLE’s comments on the House Energy and Commerce Committee’s Comm Act Update process