Back door white house influence voids FCC decisions, says judge

by Steve Blum • , ,

Who’s controlling whom?

This week’s decision by the federal appeals court in Washington, DC to stand by an earlier ruling that okayed the Federal Communications Commission’s reclassification of broadband as a common carrier service contains an interesting warning to the Trump administration and current FCC chair Ajit Pai. Judge Janice Brown, who dissented and argued that the FCC order was illegal, lambasted off the record interference by the white house in regulatory processes…

If the means by which the President seeks to shape the agency’s deliberations transgress legal procedures designed to ensure public accountability — like notice-and-comment requirements and rules regarding ex parte communications — he undermines the accountability rationale for confining executive Power to the President…Acting with concern for public accountability seems especially salient when the President “and his White House staff” seek to exert influence over the direction of an ostensibly-independent agency…

This Order shows signs of a government having grown beyond the consent of the governed: the collapsing respect for Bicameralism and Presentment; the administrative state shoehorning major questions into long-extant statutory provisions without congressional authorization; a preference for rent-seeking over liberty. This Court had an opportunity to see the wisdom of the “Man Controlling Trade” statue on Constitution Avenue, but we are no longer on the Constitution’s path. Hopefully, there is a clearer view of the road back to a government of limited, enumerated power from [the supreme court building] in our Capital City. In that hope, I respectfully dissent from the Court’s denial of rehearing en banc.

Of course, the white house that Brown is blasting belonged to Barack Obama and the FCC was led by former chair Tom Wheeler at the time. But the same reasoning applies to the current occupants.

There’s been no particular suggestion that Donald Trump is pulling Pai’s strings. In fact, everything Pai has done to date as chairman is completely consistent with views he’s strongly expressed since before Trump was even a candidate. But the still murky role of the swamp creatures in the transition landing team that parachuted into the FCC late last year leaves the question open. Pai and Trump should take Brown’s advice to heart and keep their relationship at distance arm’s length.