As a matter of law, a federal agency only has the specific authority granted to it by Congress. That’s why CAI looked skeptically at the latest attempt by the Federal Communications Commission (FCC) to claim authority to regulate an association’s ability to enter into exclusive agreements with video service providers.
You see, the FCC looked at this issue several times in the past, but quickly determined that they didn’t have the authority to regulate services in this area. But this time they suddenly ‘discovered’ an existing statute that they were not previously aware of that grants them this power. After this amazing revelation, the FCC issued a call for comments on what effected parties think about this claim. CAI made sure the voice of community associations was heard.
In short it’s about market power and access. Associations and developers use exclusive contracts to obtain an expanded set of services for their residents. Such agreements are a strong incentive for service providers to invest the thousands and even millions of dollars required to extend their networks to serve new communities on the growing edge of an urban area. Limiting an association’s right to enter into such contracts diminishes an association’s ability to negotiate with providers to obtain bulk rates, quality service commitments, facility upgrades and new services for their members.
But even if you disagree, the FCC, like all federal agencies is required to obtain a legislative mandate before it can extend its regulatory authority. The ‘discovery’ of a provision in existing law that the Commission previously overlooked shortchanges the democratic process. If there exists a growing problem with such contracts (a subject certainly open to debate), then the FCC is required to petition Congress to expand its powers accordingly. That way the debate will be open and transparent, rather than taking place in the less visible and more opaque world of regulation drafting.
Traditionally an agency or commission can take anywhere from several months to several years to review comments and follow up with either a determination, a call for additional comments or a proposed rule. We will be watching.
A copy of CAI’s comments can be found here. It’s just another example of our work to protect associations from over-regulation.
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