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Ajit Pai Could Bring Consistency Back to the FCC

Harold Furchtgott-Roth

His face is prominent on the Web. Critics say he will destroy America, or worse. His supporters say he will save America. A villain to some; a rock star to others; anonymous to no one. Of course I am describing Ajit Pai, the new chair of the Federal Communications Commission.

In a better America, the FCC was, and in the future will be, an obscure Washington agency headed by an even more obscure individual making unremarkable decisions on a daily basis. It was and will be an agency that no one pays much attention to.

That is not the America of today. Instead, Chairman Pai is confronted with demands from journalists, members of Congress, and even ordinary Americans on a vast array of questions about what he will do with important issues: “network neutrality,” “merger reviews,” “Internet privacy,” “Internet regulation,” “fake news,” “Russian hacking” and a seemingly endless array of other issues. America has many problems, and to many Americans, the FCC is the government agency that can solve these problems.

Or can it? Remarkably, not one of the terms above, or even remotely similar language, is to be found in the hundreds of pages of statutes that define the legal boundaries of FCC actions. The FCC has vast powers. But those powers are not without limit, and those limits do not include many of the topics that currently occupy the agency. In some instances, statutory authority might give some discretion to the FCC to solve certain problems or to choose not to do so; in other instances, even the discretion is absent.

For years, the FCC has dallied in bureaucratic imperialism, occupying legal domains reserved for other government agencies, or for no government agency. Rather than let Congress exercise the power to assign responsibility as it sees fit, the FCC has asserted that it has authority to make those decisions itself.

The FCC is challenged in court often regarding its exercise of extraordinary powers. Sometimes the FCC wins with the grace of indulgent judges hesitant to rule against a federal agency. And sometimes the FCC loses.

But usually, the outcome is enough in doubt that businesses that depend on FCC decisions are left paralyzed by legal uncertainty: will the FCC prevail in court or not? These businesses are discouraged from investing in the regulated communications sector.

When the FCC engages in bureaucratic imperialism, the biggest winner is the reputation of the FCC chairman. With imperialism comes publicity, and to paraphrase P.T. Barnum, all publicity is good. The biggest loser with bureaucratic imperialism is the American consumer. Bad regulation leads to less investment, less competition, higher prices, and fewer choices to American consumers.

As chairman, Ajit Pai could limit the FCC to just what is clearly in statute. The agency would still retain vast powers. But the FCC would not be mired in bureaucratic imperialism, and Pai would not be on the cover of national magazines.

Such an FCC would not depend on the kindness of strangers and indulgences of lenient judges. Such an FCC would develop a reputation as wise in its limited exercise of its powers. Judges would presume the agency was certain to be right rather than, as one judge confided to me, certain to be lying. Businesses and other parties would be reluctant to challenge an agency with newfound credibility.

More importantly, businesses, both large and small, would know the FCC rules of the road and could invest accordingly with little fear of the trials and tribulations of endless court reviews. Businesses would compete for the allegiances of consumers rather than the spoils of bureaucratic imperialism. Ideas to impose new laws on new technology, rampant in Washington today, would be considered not by the FCC but rightfully by Congress.

All of which brings us back to the extraordinary publicity surrounding the new chair of the FCC. Heading an agency that stays squarely within the four corners of the law is not a good way to gain national publicity. National media like big controversies and big ideas, not the humdrum, non-controversial operations of a law-abiding bureaucracy. What is good for the American consumer, however, usually has little media attention.

All too often, the measure of the success of the head of a federal agency is fame and media attention. A better measure is reduced fame and lack of media attention. Ajit Pai should aspire to the latter.

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