The FCC, still lawless

[Commentary] The tendencies of the Obama administration's Federal Communications Commission to exercise power in a lawless manner have become more manifest as the year has progressed. The long and short of it is that, this year, the agency increasingly has arrogated to itself the power to impose sanctions upon those it regulates for actions the regulated parties could not have known in advance to be unlawful.

This conduct ignores fundamental rule of law and due process norms because the agency is asserting authority to penalize regulated parties without adopting, in advance, knowable, predictable rules. It may not be surprising that companies regulated by the FCC — in other words, firms whose businesses are subject to the agency's favor or not — choose to settle cases based on questionable assertions of agency enforcement authority. And it is not surprising that government officials relish exercising such unbridled authority. What may be surprising is that, as the Obama administration resorts to expanding administrative agency power across the board to achieve regulatory objectives it otherwise could not achieve, is that so little attention is paid to what is happening at the FCC. A government of laws, not of men, requires a rule of law regime in which the rules are knowable and predictable — not one in which those subject to the government's enforcement authority are expected to be mind readers.

[May is president of the Free State Foundation]