Why an Exception for the FCC’s “Unjustified” and “Pointless Red Tape”?

July 6, 2011

In a Washington Post op-ed entitled “A smarter approach to cutting red tape,” Cass Sunstein, the White House’s Regulatory czar, laid out a laudatory plan for Federal executive agencies “to eliminate burdensome requirements that hinder economic growth and job creation,with a big loophole problem — the plan does not apply to “independent” agencies like the FCC and its burdensome net neutrality regulations in the Open Internet order.

It makes no sense that the FCC’s net neutrality regulations, the veritable poster child of “unjustified burdens and pointless red tape,” have escaped: 

  • The fact that the President directed: “all executive agencies to cut costs, to promote predictability, to streamline paperwork requirements, to choose the least burdensome approach, to listen to those affected by the rules and, through our ‘regulatory look-back’ process, to eliminate rules that just don’t make sense.”
    • There was no net neutrality problem to fix before the FCC order, and there is stillno net neutrality problem the FCC needs to address now.
    • So the FCC’s Open Internet order is the worst of all worlds — it is basically all cost and no benefit.

More problematic is that independent agencies, like the FCC, supposedly are “creatures of Congress,” but this FCC ignored a majority of Congress last year that asked the FCC to defer to Congress on net neutrality.

Even more problematic is that the FCC passed net neutrality regulations without statutory authority to do so, given that the DC Court of Appeals ruled in Comcast vs. FCC that the FCC does not have the legal authority to regulate broadband information services.

In sum, the big open question for those considering the question of FCC reform in Congress is who is the FCC accountable to, if the FCC doesn’t listen to the executive branch, the legislative branch, or the judicial branch?

 
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