'The Law is Whatever the Nobles Do': Undue Process at the FCC
Barbara S. Esbin
August 15, 2008
Progress & Freedom Foundation Progress on Point Paper, Vol. 15, No. 12, August 2008
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.
Particularly questionable is 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 Commission also lacked established procedures for addressing Formal Complaints against a non-common carrier. It appears 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.
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.
Whether one believes that government-mandated norms of behavior for 'bandwidth providers' are good or bad policy, the only acceptable means by which government may impose such mandates is through scrupulous compliance with its own procedures.
Number of Pages in PDF File: 16
Keywords: FCC,undue process,Kafka,broadband regulation,comcast,comcast ruling,network neutrality,net neutrality,adjudicate,formal complaint,peer-to-peer,Internet Policy Statement,rulemaking,adjudication,McDowell,Chairman Martin,Network Management,cable,internet,telecommunications,broadband policy,bandwidth
JEL Classification: D7,D73,K23,L21,L5,L51,L52,L63,L82,L96,L98,O38working papers series
Date posted: May 30, 2009
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