The government has to follow its own rules

The government has almost all the power in regulatory matters. Too often, representing regulated entities against government action boils down to educated whining. You feel like the mouse flipping off the hawk in one last valiant gesture of defiance. But where the rule of law still lives, there is one power left to the regulated: The government has to follow its own rules. A demonstration of this power is described on the CommLawBlog in "FCC to Convenience Stores: Oops!" by Donald Evans (Fletcher, Heald & Hildreth, Arlington, VA). Subtitle: "Procedural stumble results in withdrawal of citations and proposed fines".

... We don’t usually think of convenience stores as being subject to FCC regulation. But because the stores stocked prepaid cell-phone handsets, the FCC designated them “resellers of wireless services,” and went on to fault them for failing to file certain reports relating to compatibility of the handsets with hearing aids.

The FCC has now withdrawn those citations along with eight others, plus nine proposed fines.

When the FCC or any federal agency adopts a rule that imposes new paperwork burdens, the hilariously-named Paperwork Reduction Act requires the rule to be approved by the Office of Management and Budget (OMB) before it can go into effect. The FCC ships the newly-adopted rule over to OMB for review, a process which normally takes just a few weeks. OMB almost always approves the rule, even if it triggers staggering amounts of new paperwork, and gives the rule a “control” number. The FCC then puts a notice in the Federal Register saying the rule is effective. ...

OMB had approved the rule back in July 2008, but the FCC neglected to publish the necessary notice of its effectiveness. (The FCC did publish the fact of the OMB approval on July 21, 2008, but forgot to say that the rule was effective.) In any event, since the FCC cannot issue citations and other punitive actions based on supposed violations of the then-not-yet-in-effect reporting rule, the citations and proposed fines had to be quietly withdrawn.

Some journalists might call this a "technicality". But given the disparity of power between a regulated entity and the government due process gives regulated entities the right to insist that the government follow its own rules. Those rules are there to protect people, in this case by giving regulated entities at least a chance of knowing what regulations they are subject to. (Not that the convenience stores had the slightest idea they had come under FCC regulation by selling prepaid phones — another problem for other posts.) Whether you are dealing with a homeowners' association or the federal government, checking if the rule was properly promulgated is right up there with checking the enabling statute. EMM