In July 2011, President Barack Obama actually issued an executive order that, at least on paper, makes good sense. It’s Executive Order 13579, ‘Regulation and Independent Regulatory Agencies,’ urging independent agencies such as the Federal Communications Commission to establish plans for periodic retrospective reviews aimed at eliminating outmoded regulations.
E.O. 13579 followed on the heels of an earlier Obama executive order requiring executive branch agencies to engage in retrospective reviews to eliminate outdated, no longer necessary regulations. In the case of so-called independent agencies, President Obama (supposedly) could not “order” that the agencies undertake retrospective reviews, so E.O. 13579 simply “urges” them to do so. [Read More]
Check out Randy May of the Free State Foundation's thoughts on the FCC and Constitution Day:
Constitution Day officially is September 17, 2016. This year marks 229 years since the signing of the Constitution on September 17, 1787, in Philadelphia.
Not many people celebrate Constitution Day, but I've always thought it worthy of commemoration. It's an opportunity to take a moment - or maybe more than a moment - to think about the Constitution's meaning and its relevance to today's issues.
Over the years, I've written often about the ways the FCC's actions implicate constitutional strictures and constitutional values. Because the FCC regulates media, communications, information services, and now the Internet, it is not surprising that many of the agency's actions implicate the First Amendment's free speech guarantee.
While many of the FCC's actions present a target-rich environment, today I want to focus on just one current proceeding that implicates several different constitutional provisions - and that appears to run up against constitutional constraints.
On August 10, the U.S. Court of Appeals for the Sixth Circuit reversed the Federal Communications Commission's Municipal Broadband Preemption Order (2015). Among many candidates, the FCC’s order ranks as one of the most far-reaching and far-fetched attempted power grabs in the agency’s history. Thankfully, in Tennessee v. FCC (2016), the Sixth Circuit refused the agency's bold attempt to exceed its lawful bounds. [Read More]
On June 14, a 2-1 majority of the DC Circuit Court of Appeals gave absolute and unqualified approval to the most expansive and intrusive swath of broadband Internet regulations ever conceived by the Federal Communications Commission. US Telecom v. FCC is a big win for government power to mold the Internet's future.
At issue in US Telecom v FCC is what the agency calls its Open Internet Order. At the core of the Open Internet Order is the FCC's reclassification of broadband Internet access services from a lightly regulated Title I "information service" to a more intrusively regulated Title II "telecommunications service." [Read More]
The rule of law depends upon adherence to a system of binding rules of certain process norms, or what we often call “due process of law.” One of those process norms requires that the law, in order to be binding, provide sufficient clarity, predictability, and equal applicability. The rule of law safeguards against excessive and arbitrary exercises of government power.
These process norms deserve close attention when it comes to analyzing the regulatory and enforcement activities of administrative agencies. Recent activities of the Federal Communications Commission (FCC) warrant particularly close consideration. In The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses, published May 23 in the Federalist Society Review, we argue that the enforcement and merger review activities of the Commission undermine important rule of law principles. [Read More]