The Commission has abused its media merger approval authority – by unilaterally writing destructive “law” into merger agreements, disguised as “voluntarily” acquiesced-to merger “conditions.”
The most recent example being the pages and pages of extra-legal demands forced upon the Comcast-NBC Universal deal.
“Conditions” which included, by the way, a seven-year Net Neutrality requirement. To which Comcast has to adhere regardless of the almost inevitable overturn – either legislatively or judicially – of the FCC’s Web usurpation.
All of this FCC “law”-writing is well outside its legal purview. If they want to engage in creating legislation, they need to quit the Commission and run for Congress.
They didn’t have the authority to impose Net Neutrality in the first place. They certainly did not have it to then superimpose Net Neutrality on the Comcast-NBC deal.
But because the FCC has a gun to the head of every media company seeking to conduct a private sector merger, Comcast had to “voluntarily” do what their FCC overlords demanded – no matter how abusive or illegal – or the Commissars wouldn’t allow their merger.
Ahh, the free market at work.
Which brings us to the FCC’s next opportunity to illegally create law under the guise of “conditions” – the spectrum bandwidth auctions.
Quick definition: Spectrum is the allocated airwaves. Used by broadcast radio and television (not cable TV), satellite radio and TV, cell phones – and even Bluetooth headsets, garage door openers and car key fobs.
Just about anything that does anything wirelessly.
There’s all sorts of spectrum, some of it high quality, some of it not. Let us use the Monopoly analogy – there’s Boardwalk and Park Place spectrum, and there’s Mediterranean and Baltic Avenue spectrum.
And we’re running out of free-for-use spectrum. Take five seconds to think about all the things we do without cords these days, and you’ll understand why.
There are myriad reasons for the looming shortage. (A chief driver of the crunch is the Web – and specifically Web video, which chews up a ton of airspace. Google’s YouTube – and their app on your iPhone – is a principle contributor.)
So we need Congressional legislation to create the next round of spectrum bandwidth auctions.
(Which is further fomenting a great and growing prospective battle between the radio and TV broadcasters – who have spectrum aplenty, but who aren’t using all of it optimally or at all – and the phone companies – who will be needing the eternal More. But there’s much more to this, so let’s not go there – here. At least for now.)
The absolute last thing we need is the Congress inadvertently – or deliberately – back-dooring the FCC any sort of legislative “conditions” imprimatur via the spectrum auction law.
Meaning: Don’t write a spectrum bill that even intimates the FCC has this far-reaching, seemingly limitless “conditions” authority – which they’ve illegitimately claimed on mergers – on these auctions.
Meaning: Don’t cram the spectrum auction law with a whole host of Leftist ideological claptrap “conditions” – to which purchasers have to adhere. If you do it, the FCC will think they can go hog wild. Or – hog wilder.
Back to the Monopoly analogy: It’s like artificially creating a bunch of liens on a property’s title. And then trucking in spotted owls, snail darters – and Environmental Protection Agency (EPA) regulators.
The spectrum auction conditions build in serious property devaluation. An auction that should produce billions of dollars would thusly render millions. The higher the cost of complying with all of the governmental inanity, the lower the price the spectrum purchasers are willing to pay.
How do we know this? It’s exactly what happened the last time the FCC auctioned spectrum. They loaded it up with “conditions,” and the resulting cash net was a fraction of what was expected.
So Congressional legislation delineating the next spectrum auction should proscribe such conditions. For free market, governmental revenue – and FCC illegal power grab reasons.
Any intimation of Congressional conditions on the auction will – in the minds of Huge Government activists – be the exact same as giving Congressional blessing to the FCC conditioning the heck out of any and everything.
Spectrum auctions, mergers – anything of which the FCC can think.
You’ve recently heard the Left repeatedly clamor for a “clean” federal debt ceiling hike. Which meant raising it with no conditions – so that Huge Government could continue getting huger unabated.
It is in Congress’s spectrum auction law where cleanliness is next to Godliness.
A clean law would – among other very positive things – not lend any sort of legislative legitimacy to the FCC’s ongoing and serial rogue lawmaking.
Since Congress is looking to rein it in, they shouldn’t build it in.