The “Particular Dangers” of Slaughter’s Impact on the FCC

I recently co-authored a Harvard Business Review note about the impact of Trump vs Slaughter—the case in which the Court allowed the President to fire independent regulators without cause—on businesses generally. However, I want to address the specific impact on the Federal Communications Commission and the businesses regulated by the FCC’s rules and procedures. There are nuances unappreciated by the commentary to date and particular dangers—and a need for a response—that FCC-related enterprises face that the general business community does not. Further, it is in the interest of those enterprises to try to shape the post-Slaughter environment that will create a fair and more predictable regulatory environment in the years to come. One widespread view is that, with the current FCC Chair doing the most important work through the bureaus, and his belief that the FCC was already part of the Administration and not independent, there is little to no impact. Another view is that Slaughter settles the question of the President’s control of the FCC so that while there is an impact, there is no remaining legal question as to the President’s total power over the agency. Both are reasonable observations. However, I think both views miss important nuances about the law and business impact.

[Blair Levin is a policy analyst at New Street Research and a Senior Nonresident Fellow at the Brookings Institution. He previously served as Executive Director of the FCC's National Broadband Plan and as Chief of Staff to FCC Chairman Reed Hundt.]