Esbin Raises Numerous Due Process, Administrative Procedure Act Concerns
WASHINGTON D.C. - There appear to be serious flaws in the legal and procedural actions taken by the Federal Communications Commission when it found Comcast guilty of violating the principles announced in its 2005 Internet Policy Statement, states PFF Senior Fellow Barbara Esbin in "The Law is Whatever the Nobles Do: Undue Process at the FCC" released today by The Progress & Freedom Foundation.
In the paper, Esbin questions the Commission's decision to combine adjudication, or enforcement actions directed at specific past behaviors, and rulemaking, or prospective rules generally applicable across an industry, in the same procedure. Among other failings, the FCC has never released a notice of proposed rulemaking that either publicly outlined the rules to be applied to Comcast's broadband network management practices or the procedural vehicle the FCC would use to handle violations of such rules. It appears that the Commission also failed to provide Comcast with adequate process in which to address complaints, by relying on statements made in unrelated proceedings for "notice" and by claiming the two public hearings the company was invited to speak at satisfied due process "opportunity to be heard" requirements.
The author further explains that the Commission lacked established procedures for addressing "Formal Complaints" against a non-common carrier. "It appears," Esbin states, "to have both created a new set of such procedures at the same time it applied them to Comcast, and established a new framework for [handling] similar complaints in the future."
More generally, Esbin states that the FCC's action highlights a greater problem. The FCC's means of asserting regulatory authority over broadband Internet service providers' network management practices is unprecedented, sweeping in its breadth, and seemingly unconstrained by conventional rules of interpretation and procedures. "Now that the FCC has asserted its authority to regulate Internet provider broadband network management practices, the question arises, 'who will regulate the regulator?' This is not an idle inquiry, but rather an urgent problem. For apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers and unconcerned about the serious reservations expressed by the current Administration and members of Congress." "We should all be concerned," she warns.
Esbin states that while policy goals may change over time, consistent procedures for implementing and enforcing these goals must endure. "Whether one believes that government-mandated norms of behavior for 'bandwidth providers' are good or bad policy," Esbin concludes, "the only acceptable means by which government may impose such mandates is through scrupulous compliance with its own procedures."
"The Law is Whatever the Nobles Do: Undue Process at the FCC" is available on the PFF website.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.