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President Obama Attacks FCC's Independence
(A screenshot of President Obama's video instructing the FCC to impose net neutrality, November 10, 2014)

President Obama Attacks FCC's Independence

Harold Furchtgott-Roth

Yesterday was a sad day for our government and for America. Not merely did President Obama use government facilities, the web site of the White House, and a willing media to disseminate his message, to give unambiguous instructions to the Federal Communications Commission, an agency supposedly independent of the White House. The FCC is responsible for implementing a federal law, not for deferring to the judgment of the president. In addition, the manner in which Mr. Obama expressed his views put his office and the FCC at risk.

The nature of the command is betrayed by Mr. Obama’s words: “The FCC is an independent agency, and ultimately this decision is theirs alone.” Practically every parent in America has, at some time, used similar language with a child. It is a parental euphemism to instruct and to threaten a child on a course of action without the child suffering the humiliation of receiving a direct command. “Do as I say and all is well.” Unspoken, but fully understood, are the punishing consequences of defiance. This is not the language that should be used with an entity over which the president should have no influence and control.

Mr. Obama saw no tragic irony in calling for government regulation of the Internet from China, where a government is known for regulating the Internet to the detriment of its people. Worse, the president has surrounded himself with advisers who recommended this course of action and saw nothing improper with it. Still worse, the president did not have the judgment and common sense to see that this course of action was wrong. And worst of all, the American public learned about it as the lead story in national newspapers and other media, and still yet on the White House website, a painful reminder of what our government must not be.

America can do better.

The FCC once was, and one day shall be, an independent agency. Each of its five-member board is a commissioner, nominated by the president and confirmed by the Senate. Full disclosure: I was a Clinton-appointed commissioner from 1997 to 2001. Once confirmed, like judges, commissioners cannot be removed from office or fired by the president. They should not be bullied by anyone, least of all the president of the United States.

Mr. Obama can present his views to the FCC through the time-honored administrative procedures of the agency, but the president chose not to do that. He chose instead to engage in a massive media campaign to influence the FCC on network neutrality using government facilities and personnel.

President Obama called on FCC Chair Tom Wheeler and the entire FCC to adopt the president’s vision of network neutrality. That vision calls for regulation of much of the Internet.

Mr. Obama’s views should be given no greater weight than that of any other American. Given that the FCC has received millions of public comments few of which has been read by any commissioner, it is difficult to see why the president’s views should be put at the front of the line ahead of those of ordinary Americans. Of course, that is exactly what will happen.

For decades, no president would dare to utter publicly what might be construed as commands or even threats to the FCC, other independent agencies, or our courts. The occasional member of Congress who would dare to tell the FCC how to treat a constituent would be subject to an FCC complaint and investigation. Efforts to influence courts no doubt would be subject to harsh criticism.

Mr. Obama’s instructions are not painted with broad brush strokes, but are detailed and diverge from positions recently proposed by Mr. Wheeler.

If the FCC adopts rules that are the same or similar to those proposed by the president, the FCC and its chairman will appear to be under Mr. Obama’s direct influence. So much for an independent agency. If, on the other hand, the FCC ignores the president, the commissioners are exposed to his unsubtle threats. So much for the FCC’s independence. The commissioners are in a lose-lose situation.

Mr. Obama may have any number of reasons for the timing of his instruction to the FCC. Last week’s election losses for his party would demoralize any president. Appearing to control a policy issue such as network neutrality might appear to offer him much needed credibility. But no political reason can justify the president’s overbearing instruction to the FCC.

The unwelcome assault on the independence of the FCC is a threat not merely to that agency. It is a threat to our entire system of government based on the rule of law. It is also a threat to the Internet. Where there is no rule of law, the Internet does not flourish.

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