Today The Hill published my op-ed, “The FCC, Still Lawless.” The piece is all about the FCC’s abuse of its enforcement powers by imposing fines and penalties without first adopting and publishing knowable, predictable rules. The agency can’t expect those it regulates to be mind readers. When it does so, it violates well-established rule of law norms.
Here are the first four paragraphs. I hope you will read the entire piece:
On the second day of this now nearly gone year, I published an essay, "A Question for 2015: Is the FCC Unlawful?" In it, I stated that "there are reasons why this year will be a propitious time to examine – even more intensely than in the past – the FCC and its actions through just such a lawfulness frame of reference."
Sadly, upon examination, the tendencies of the Obama administration's Federal Communications Commission (FCC) to exercise power in a lawless manner have become more manifest as the year has progressed.
The long and short of it is that, this year, the agency increasingly has arrogated to itself the power to impose sanctions upon those it regulates for actions the regulated parties could not have known in advance to be unlawful. This conduct ignores fundamental rule of law and due process norms because the agency is asserting authority to penalize regulated parties without adopting, in advance, knowable, predictable rules.
These rule of law norms weren't invented yesterday. Indeed, it is especially useful to recall this year – the 800th anniversary of Magna Carta – that our Constitution's conception of "due process of law" is generally acknowledged to be an inheritance from the Great Charter.