FCC Chairman Brendan Carr recently told Congress that he doesn’t believe that the FCC is an independent agency. The FCC went so far as to remove the term independent from its website. The bottom line of Chairman Carr’s opinion is that he believes the FCC should take direction from the White House.

It’s an interesting position that contradicts the long-standing intentions that the FCC, and many other federal agencies are independent, meaning that they don’t take directions directly from the Administration, but are required to follow whatever enabling laws and rules established by Congress. There are a number of independent agencies other than the FCC, including the EPA, SEC, Federal Reserve, NASA, CIA, FTC, SSA, and NTSB.

There are several key characteristics of independent agencies. First, they are not part of, and don’t report to any of the fifteen cabinet departments like State or Treasury. Independent agencies were generally established by Congress to be somewhat shielded from political pressure. For example, it’s not easy for the President to fire the head of an independent agency. The agencies are often structured with a multi-member Board or Commission, which typically includes rules that require representation from both parties. Some agencies like the SEC and the FCC are accorded rule-making power within a specified range of issues.

The FCC was created by Congress with the passage of the Communications Act of 1934. The agency has been directed by Congress to regulate radio, television, wire, satellite, cable, and the Internet. The Act did not include language that specified the FCC was independent. The independent status is inferred from the structural provisions in the Act that define how the agency operates. The relevant language appears in Section 4(a) of the Act (codified as 47 U.S.C. § 154(a)), which establishes the structure of the Commission. The Act created a commission of five (originally seven) members who are appointed by the President and confirmed by the Senate. The Commission must be bilateral, and no more than three members can be from the same political party. Commissioners serve for fixed, five-year terms. The FCC is required to follow laws passed by Congress aimed specifically at the agency.

The Supreme Court has explored issues related to independent agencies over the years. Supreme Court rulings, like Humphrey’s Executor v. United States (1935), defined a key element of an independent agency to be a lack of explicit legislative language giving a President the power to remove commissioners at will (i.e., for any reason). Instead, the ability to remove commissioners is widely understood to be limited to specific reasons like “inefficiency, neglect of duty, or malfeasance in office.” This structure of independent agencies is done deliberately to insulate agencies from direct presidential control and ensure decisions are based on the public interest rather than political pressure.

Chairman Carr’s statements are a direct challenge to Congress. Historically, independent agencies like the FCC are given general marching orders from Congress through legislation, but even then, the agency is free to interpret specifically how to enact laws. Chairman Carr says that he feels empowered to take direction directly from the White House, and it seems likely this will eventually trigger a showdown. At some point, Congress will have to assert its authority or cede its power to the Administration.

The FCC has never been free from politics, because almost nothing in Washington D.C. can be. The FCC Chairman has traditionally been from the same party as the White House and is typically sympathetic to policies of the administration. But there has always been an uproar if an FCC Chairman has been accused of directly taking direction from the administration. An example of this happened when Republicans accused Chairman Tom Wheeler of too closely following the White House direction on the issue of net neutrality.

The long-term repercussions of a political FCC are not good for the industry. While ISPs, carriers, and programmers all have a wish list of regulations they don’t like, there has always been a huge benefit for regulated companies to have regulatory certainty, which means that rules don’t change drastically with every change of administration. Regulated companies might complain loudly about being overregulated, but they benefit financially from knowing the rules, since this allows them to develop long-term strategies. Every large ISP will quietly admit that regulatory certainty is far better for them than rules that change with each Administration.