Under a representative democracy, can we really say it’s a good thing when three unelected bureaucrats decide to so dramatically alter the statutory will of Congress that their actions may rightly be considered “historic” (0)? The FCC, which in essence voted to declare a crucial segment of the Internet a “telecommunications service” just two weeks ago, has of course characterized its actions in different terms (1). Whichever way you put it, though, the new rules (2) (which include 600 paragraphs and are almost 400 pages long) indeed represent an “historic” change. By plunging the Internet into public utility regulation from the 1930s, the FCC simultaneously changed the law for the Internet and injured the relationship of citizens to their government.
The FCC made clear that the Communications Act of 1934 does not fit the modern world. Therefore the FCC took it upon itself to alter, massage and reinterpret the 1934 Communications Act as the agency saw fit. There is no disagreement that Title II of the Communications Act was written for a very different and particular purpose, at a very different time, long before the Internet was a gleam in Congress’ eye. For a bit of historical context, here are a few highlights from 1934 (3):
- Alcatraz officially became a federal prison
- Babe Ruth signed a contract with the Yankees for $35,000
- Shirley Temple appeared in her first movie, “Stand Up and Cheer”
- Bonnie and Clyde killed 2 police officers
- The Dow Jones Industrial Average was around 100
- The Department of Justice offered a $25,000 reward for Dillinger, dead or alive
- The Federal Communications Commission (FCC) was created
In 1934, government control of industry was the norm. Congress created sprawling agencies to direct and control large swaths of the economy. The FCC in particular was tasked with controlling a national monopoly: AT&T. It is with no little irony that the FCC itself helped protect and grow AT&T’s power. That is, until antitrust authorities finally ushered in competition (4).
It is this world – the world of 1934 – for which the Communications Act was written. To “tailor” a regulatory morass (5) made for AT&T over 80 years ago to the vibrant, dynamic and evolving Internet indeed requires historic legal effort.
But there are limits to agency power. Agencies are “rule makers,” not “lawmakers.” Lawmakers are those men and women sitting in Congress. Voters elect them, and voters can likewise chastise them. Agencies are charged to faithfully execute the laws Congress passes, and nothing more. To be sure, the courts have some oversight (6) to check that agencies act within the restraints lawmakers give them. An agency cannot, for example, claim “an enormous and transformative expansion in [the agency’s] regulatory authority without clear congressional authorization.” Indeed, “[w]hen an agency claims to discover in along-extant statute an unheralded power to regulate, ‘a significant portion of the American economy,’…[the Court will] typically greet its announcement with a measure of skepticism.” In other words, the more “historic” an agency’s interpretation of its statute, the less likely the agency is faithfully executing the law.
But lest one thinks the courts will stop agency overreach in its tracks, think again. Although the Justices have openly bemoaned the rise of the administrative state and its massive intrusion (7) into all aspects of civil life, the court itself has been highly deferential to an agency’s interpretation of its statute. Therefore, there is a plausible argument that the reclassification will withstand judicial scrutiny. If it does, it won’t be because the new Open Internet order is good policy or even the best interpretation of the FCC’s statute. The FCC may only need to demonstrate its interpretation isn’t completely crazy.
So that brings us full circle. Is it a good thing for an agency to make an “historic” interpretation of its 80-year-old statute? Commissioner Mignon Clyburn invoked James Madison (8) in her statement, alluding that Madison was a comparable visionary to the current FCC. It is bad enough to see FCC leadership conflate its actions with those of Madison – who was elected to form a new nation, not appointed to do the work assigned by the elected. It gets worse, however, since Madison himself warned (9), “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, …may justly be pronounced the very definition of tyranny.” A perfect condemnation of untethered, agency power.
The commission’s rhetorical arrogance is obvious but ultimately inconsequential. It does reflect, however, a lack of regulatory humility (10) most certainly called for when three, unelected individuals decide that they can and should control “the most powerful network in the history of mankind.” (11) No FCC decision should be so “historic.”