It has been almost two years since Obama announced his intent to rulemake and regulate the American economy into the ditch with his “pen and phone.”  Of course, conservatives had experienced the administration’s willingness to push the boundaries of executive authority even before Lois Lerner’s hard drive met its fate in the open jaws of an AMERI-SHRED AMS-750 HD way back in 2011.  But since his announcement in 2014 things have gotten even worse.

From Obamacare rulemaking that violates the disastrous law itself to stretching Dodd-Frank financial regulation beyond its (already unconstitutional) limits; from shutting down power plants to rolling back First Amendment freedoms, unless stopped by costly legal action everything seems to be on the table for the “pen and phone”.

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Even in this laundry list of executive overreach, the work of the Federal Communications Commission shines as a special star in the constellation of legal contortions the administration has proffered.

For years—including throughout much of the Clinton Administration—taxpayers and consumers enjoyed an FCC that for the most part accepted its mission within the relatively narrow confines of the law.  Since the Telecommunications Act was passed in 1996, the technology sector flourished and was allowed to innovate as a result of a show-cause, light-touch regulatory policy.

Throughout this administration, and in particular since chairman Tom Wheeler took the helm at the FCC, the Commission shows every sign of stumbling toward a world of Soviet-style government-run networks where private companies are stuck in a maze with an FCC-mandated toll booth around every corner.

The FCC’s imposition of internet regulation through a creative reinterpreting of the decades-old Title II public-utility regulation is only the most well-publicized example of the willingness of Wheeler’s commission to force square pegs from the last century into today’s round holes. 

It’s also trying to use its trusty old Title II to claim authority to regulate consumer privacy, which equals double trouble since the Federal Trade Commission thinks it owns consumer privacy regulatory authority.  Among a long list of Congressional reprimands, Rep. Marsha BlackburnMarsha BlackburnTrump's Twitter lockout raises safeguard concerns Anti-pyramid scheme legislation is necessary to protect consumers from fraud Former Tennessee rep enters race for Corker's Senate seat MORE (R-Tenn.) headed up a letter from 13 U.S. Representatives to the FCC reminding them that authority to regulate consumer data privacy can only be granted by Congress. 

The Commission also opened an investigation into the rates companies charge for the special data connections other businesses buy in order to plug-in retailers, ATMs, and cell towers, for example.  The FCC is clearly picking one set of favored companies over another.  But even worse, this investigation looks like it is designed to help make the argument that only the government should be running networks.

In Tennessee and North Carolina, the FCC has taken preemptive action to overturn laws passed in those states to protect taxpayers from city and county-funded broadband boondoggles.  Again, it’s hard to see how the aim of this federal overreach would be anything other than government-run networks.

It doesn’t take a genius to see what the FCC is doing.  It is piling up obstacles to private investment in private networks, putting us on a glidepath to a taxpayer-funded and government-owned telecommunications and Internet structure that looks like a cross between a Yugoslavian car factory and a Soviet-era milk distribution scheme.

The FCC attack on free-market networks is having the desired effect.  For the first time—setting aside the dot.com bust and in 2008 during the recession—broadband investment by Internet Service Providers declined in the first half of 2015.  Before you know it they’ll be announcing taxpayers must now fund their “solution” to the problem they’ve caused.

At a House Energy and Commerce Committee hearing on the FCC’s regulatory overreach (one of at least 8 hearings the Chairman has been called to), Wheeler claimed he would work together with his “fellow Commissioners, Congress and other stakeholders,” to make “further improvements to the agency’s operations.” There has been no sign since then that the FCC is reversing its abysmal track record of ignoring minority members of the Commission and Congress alike.

The FCC has an opportunity to be reasonable and work with consumers instead of against them.  As apps are taking the place of hardware at an increasing clip, the FCC’s audacious move into regulating cable boxes shouldn’t have been shocking considering their behavior thus far, but it was.  Of the problems the FCC purported to solve with new regulation, industry responded with solutions to the Chairman’s gripes that also addressed their problems with the Chairman’s approach.

It takes a special effort to stand out in an administration full of overreach and boundary-crossing but the FCC is doing so.  It’s time for the FCC to act like it respects the free market.  If it won’t Congress needs to make it.


Katie McAuliffe is Executive Director of Digital Liberty, & Federal Affairs Manager at Americans for Tax Reform.