2015 a Good Time to Consider Legality of FCC Actions, FSF's May Writes
The 800th anniversary of the Magna Carta in 2015 is an opportunity to examine how “the FCC, and communications law and policy … should be reformed in ways that are consistent with rule of law norms [laid out in that…
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historic document],” Free State Foundation President Randolph May wrote in a blog post Friday. “And there will be plenty of such reform and rule of law-oriented work on which to focus,” he wrote. May said Chairman Tom Wheeler “appears intent, especially after President [Barack] Obama’s intervention, on forcing adoption of new public utility-like net neutrality mandates applicable to Internet service providers -- once again relying on questionable legal authority.” It’s “likely,” May wrote, “the agency will abuse its merger review authority by imposing, or inducing merger applicants to ‘volunteer,’ conditions unrelated to any competitive concerns directly raised by the proposed transactions.” It’s also “likely the FCC will continue to try to micromanage competition in ways that favor certain parties over others without sufficient regard to reliance or proprietary interests or due process concerns,” May wrote. Wheeler also “increasingly has evidenced a tendency to diminish his colleagues’ ability to participate in FCC decision-making processes, for example, by directing the agency staff to act on ‘delegated authority’ on significant matters or acting alone,” May wrote. The agency didn't respond. May also cited a recently published book by Columbia University Law professor Philip Hamburger, Is Administrative Law Unlawful?. May said he doesn't go as far as Hamburger’s conclusion “that most, if not all, of the actions of our administrative agencies are unlawful,” but Hamburger’s arguments should “impact the way we think about the lawfulness of various FCC actions and the way the courts consider these actions on review.”