In directing the Wireless bureau to make two substantial, Commission-level decisions today, without the full Commission vote that was requested by Commissioners Pai and O’Rielly, (concerning the release of the annual wireless competition report and regulating cellular data roaming rates), the FCC Chairman unnecessarily undermined the legitimacy of the FCC at a critical time the FCC needs all the actual and perceived legitimacy it can get.
The FCC’s legitimacy comes from the authority of law written by a duly-elected Congress under the U.S. Constitution, and from the official votes from duly-appointed FCC commissioners, who in turn abide by: the powers vested in the Commission by the Communications Act; due process; and the Administrative Procedures Act.
Making rate regulation without an official vote of the Commission can create the public perception that a majority of the Commission may not support some, or all of the new rate regulation.
At this particular time in the FCC’s history, when the FCC is potentially poised to reclassify the Internet as a Title II telecommunications service to impose rate regulation for downstream Internet traffic, (which also could involve some forbearance from other rate regulations via the official forbearance process), the perception of the reliability of the FCC in respecting its own processes and procedures is especially important.
If FCC commissioners cannot predict or count on being included in rate regulation decisions by the FCC under normal expected processes and procedures, what confidence can affected parties have that the FCC will follow the law and the FCC’s process and procedures on other matters that affect their interests?
What confidence could affected parties have that the process and procedures of the Administrative Procedures Act will be legally respected in building the necessary record for the pending Open Internet Order, or for its complex implementation?
It does not advance the current or long-term legitimacy of the FCC, if Congress and the public have a perception that the FCC may be operating in an arbitrary or capricious manner, by unnecessarily bypassing normal expected process and procedures.
If the FCC wants affected parties to respect their rules, processes and procedures, shouldn’t the FCC lead by example and be extra careful to respect their own rules, processes, and procedures?
Simply, legitimate authority and process beget legitimate outcomes.