In his call for the Federal Communications Commission to embrace strong oversight of Internet service providers, President Obama stressed that the FCC is an independent agency. "I can't just call him up and tell him exactly what to do," Obama previously said of FCC chairman Tom Wheeler. Wheeler agrees. He thanked Obama for weighing in on the net neutrality issue, but also stressed in meetings with tech advocates, "I am an independent agency."
That emphasis on the FCC's independence has surprised and even angered some who have closely tracked the net neutrality debate. But there is a good reason for it -- several reasons, actually. And they have everything to do with administrative law, lawsuits and Richard Nixon.
Under administrative law, the FCC is an independent agency, not an executive one -- think of Justice, of Labor, of Health and Human Services, etc. (A rule of thumb: Most agencies headed by more than one person -- like the five-commissioners of the FCC -- tend to be independent agencies.) The FCC gets its authority from Congress, under the 1934 Communications Act. How much control the president should have over independent agencies has been debated for a long time, but the working principle is that independent agencies operate outside the command of the president.
And given that any far-reaching net neutrality rules will almost inevitably end up in court, the 10-foot-pole distance between the White House and the FCC gives the latter a bit of cover. "One of the challenges it might face is that they did it because they were politically pressured," explains Jonathan R. Siegel, a professor at the George Washington University law school and an expert in administrative law. "As an independent agency, it can't say, 'We did it because the president told us to do it.' They have to say, 'We did it because it's the right thing to do.'"
That's especially more fraught when it comes to the FCC, the country's top telecommunications regulator. That's where Richard Nixon comes in. In the early 1970s, Nixon was thought by some, including then-Washington Post publisher Katharine Graham, to be looking to punish The Post for its Watergate coverage by going after the licenses of two Florida radio stations that the newspaper had purchased.
The Nixon tapes later picked up an exchange between Nixon and White House counsel John Dean and chief of staff H.R. Haldeman in which the president said, "the main thing is that the Post is going to have damnable, damnable problems out of this one. They have a television station...and they're going to have to get it renewed." Told by Dean that the challenges to the renewal process at the FCC had grown more "active," Nixon said, "It's going to be goddamn active here," adding, "Well, the game has to be played awfully rough."
It's never been proven that Nixon influenced the FCC's actions, but the episode has created a wariness in the White House and the commission to even appearing to be in close collaboration. So trying to influence the FCC from behind closed doors? "That's the no-no," says Reed Hundt, chairman of the FCC under the Clinton administration. The best course of action for both the president and the commission is to have their discussions happen as in full public view as possible, he said.
Which is likely one reason Obama made, and widely circulated, a video explaining his new stand on matters under the FCC's watch. If only Richard Nixon had had YouTube.