Network neutrality battle is really about FCC independence

[Commentary] The Federal Communications Commission is independent of the executive branch and accountable to Congress and the courts. Congress expects FCC chairmen to take personal responsibility for the agency’s decisions. That is a good way for FCC commissioners to think about their roles as they are buffeted by political winds in an era of divided government.

Regulatory agencies exist because Congress cannot shoulder the burden of passing laws that are as technical or time-sensitive as regulations. Congress needs regulators to turn its laws into detailed, practical rules. In addition, Congress sometimes asks agencies to balance competing goals. One senator exaggerated only somewhat when he said of the 1996 Telecommunications Act, “We put one thing in and then we put the opposite in. You figure it out when you write the rules.” That is the law FCC Chairman Tom Wheeler and the rest of the commission must interpret as they weigh their final decision on network neutrality. However, although Congress routinely delegates much power to agencies whose leaders are picked by the president, it does not want the president to dictate the actions of those agencies.

The Administrative Procedure Act (APA) of 1946 describes the compromise. An independent regulatory agency can act only in accordance with federal statutes and on the basis of a public record. The judiciary can amend or reject agency rules that it considers to be inconsistent with or beyond the legislative mandate or not supported by the public record. Indeed, the commission must tackle the net-neutrality issue precisely because the court threw out its previous decision on the topic. Stretched across the three poles of government -- executive, legislative and judicial -- the FCC is in a free-fire zone of vigorous input. But under the APA, anyone telling the FCC what to do in making a rule must speak in public. It is not in any way unusual for the executive branch to advise the FCC in public about what rules to write.

[Hundt was chairman of the Federal Communications Commission from 1993 to 1997]