Why presidents advise the FCC

Despite millions of Americans asking the Federal Communications Commission to reclassify broadband as a Title II service, Congress has announced investigations into whether President Obama improperly influenced the FCC’s Open Internet Rules proceeding. This has raised the question of the legality and history of presidents weighing in on the policies of independent agencies, like the FCC. An examination reveals that it is not only legal, but also common for an administration to comment on independent agency rulemakings. In fact, presidents have been doing so for decades.

The term “independent agency” is a specific legal designation. Put simply, it means that the president cannot fire the agency’s commissioners. The term does not, as some pundits would have you believe, prevent the president that appointed the commissioners from meeting or conversing with them. Instead, “independent” simply serves to contrast with other departments where heads of agencies serve “at the pleasure of the president” and can be dismissed for failing to follow the administration’s directives. Presidents may appoint new independent commissioners or designate a different chair, but those decisions still require Senate confirmation. This independent structure enables balance — it insulates the agency from the political process while maintaining accountability.

{mosads}Independent agencies are typically created to address subject areas where there is a need for nuanced expertise and a risk of agency politicization. Congress created the FCC to be the expert agency on communications networks because the field requires technical knowledge. Additionally, Congress did not want any president directly regulating broadcasters to influence political coverage, and therefore designated the FCC to use its expertise to protect the public interest as industry dynamics change.

Presidents are still free to weigh in on an issue, and the Commission is free to take that into account — or not. There are strong reasons why an administration might comment on agency decisions. A president may feel the need to directly advise the FCC because communications is a critical component of our national economy, security and civic discourse. Additionally, a president may make statements to share a position with the public. The 1990s and 2000s saw many attempts by Presidents Clinton and Bush to weigh in on FCC action, with mixed results. Ultimately, the president has the same right to make public statements or have private communications with the FCC as any member of the public.

Even if the president weighs in on an issue and an agency wants to follow the president’s advice, it cannot do so without proper justification, including developing a robust record demonstrating that it has examined the matter, addressed all objections, and provided a rational basis for adopting or repealing new rules. The rules will be reversed if a reviewing court finds the FCC failed to justify them or develop a sufficient record, as when the Bush Administration pushed the FCC to deregulate media ownership. A court reversed this decision because the FCC failed to justify its actions.

It’s clear that any congressional investigation into Obama’s net neutrality “plan” misses the point. The president’s statements merely echo the sentiment of 4 million Americans who told the FCC that they value real net neutrality.

It is well-known that between the Chairman’s initial net neutrality proposal in May 2014 and the early fall, the Commission accumulated an unprecedented amount of input for the record in the Open Internet docket. Reports indicated that the Chairman’s position shifted significantly towards Title II reclassification during this time. Chairman Wheeler was reportedly deciding between a “hybrid” Title II model and full reclassification even before the president’s remarks — marking a dramatic shift from his initial proposal. By the time Obama publicly voiced support for Title II, the question at the FCC was no longer whether to adopt Title II, but instead to what degree.

Obama’s net neutrality statement prioritized three important features: reclassifying broadband as a Title II service, banning paid prioritization, and extending the rules to wireless Internet. The Republican draft legislation claimed to achieve the same goals. That Wheeler’s proposal shares the same elements is hardly surprising.

It doesn’t matter if you view the president’s statement as a high-level endorsement or the final push Chairman Wheeler needed to embrace strong net neutrality rules. The bottom line is that it was neither “undue influence” nor illegal for Obama to publicly state his position to the FCC. Presidents have been doing so for more than 30 years, and this hasn’t risked the agency’s independence yet.

Feld is senior vice president at Public Knowledge hfeld@publicknowledge.org ; Forscey is Internet rights fellow at Public Knowledge kforscey@publicknowledge.org.