In a recent law review article published in the Federal Communications Law Journal entitled USTelecom and its Aftermath, Phoenix Center President and Federalist Society contributor Lawrence J. Spiwak unpacks not only the mis-guided policy and legal infirmity of the Federal Communication Commission’s 2015 Open Internet Order, but makes a compelling case as to why the D.C. Circuit’s upholding of the FCC’s overreach in USTelecom v. FCC represents a potentially dangerous expansion of unchecked regulatory power in our so-called independent agencies and raises significant due process concerns under the Fifth Amendment.
In 2015, when President Obama announced that the only acceptable approach to Net Neutrality was to regulate Broadband providers under Title II of the Communications Act (a regulatory regime adopted in 1934 for the old Ma Bell telephone monopoly), his FCC Chairman Tom Wheeler dutifully agreed. And in doing so, he placed the government at the very center of the internet.
Given that the Obama/Wheeler decision contravened nearly two decades of successful bi-partisan policy, it was no surprise that one of the first acts of the FCC under Chairman Ajit Pai was to return to the “light touch” regulatory structure of Title I under which the Internet thrived prior to 2015. Now, the Pai decision is subject to appeal, and Congress is once again holding hearings and considering legislation that will resolve the Net Neutrality conundrum once and for all.
While Spiwak’s article is ostensibly focused on the actions of the Wheeler FCC and the D.C. Circuit’s up-holding of the same, he poses the broader more important question: “(I)f an administrative agency, by its own admission, is free to interpret selectively its own enabling statute to fit the times, then what is the role of Congress?”
It’s a question anyone concerned with accountable government and the separation of powers should rightly be asking and Spiwak makes an important contribution by framing it so concisely in this piece.