Philip J. Weiser*
“We are in danger of becoming prisoners of our own procedures in the administrative process.” Newton N. Minow, FCC Chair, 1961-63
The institutional failings of the FCC have finally begun to attract attention. For years, the agency tolerated a level of mystery and secrecy over what proposals would be submitted for consideration, an extraordinary reliance on the ex parte process at the expense of the formal notice-and-comment procedure, and a limited degree of collegial discussion among the Commissioners and the public. Of late, however, concerns about how the agency operates have become more pronounced and Congress has finally taken an interest in the question of whether and how to reform the FCC’s institutional processes. To that end, both House Commerce Committee Chair Emeritus John Dingell and Senate Commerce Committee Chair Jay Rockefeller have expressed serious concerns about how the agency operates, the House Commerce Committee majority released a report citing serious failings in the operations of the agency, and law professor Lawrence Lessig has called for its abolition.
In response to the Congressional interest in institutional reform, the soon-to-be former Chairman Kevin Martin has disclaimed the need for any legislative action, has adjusted some of the FCC’s operating procedures, and, in the main, has defended the agency on the ground that his tactics are similar to those of his predecessors. Whether or not Martin’s management style is different from past agency Chairs, the great weight of opinion is that the FCC has always operated in a suboptimal fashion and is in dire need of institutional reform. As former Commissioner Glen Robinson noted over forty years ago: “[f]ew agencies of Government have been so doggedly pursued by critics as the FCC.” Former Chairman Reed Hundt added his own damning observation: that the agency suffers from a perennial “reputation for agency capture by special interests, mind-boggling delay, internal strife, lack of competence, and a dreadful record on judicial review.” In short, the question is not whether to reform how the agency operates, but how to do so.
As new leadership moves to take the reigns at the FCC, it is an opportune moment to re-evaluate the agency’s institutional processes. In confronting the challenges facing the agency, the new leadership should not make the mistake of focusing solely on the substantive issues begging for attention-spectrum policy reform, network neutrality, and universal service policy to name a few. Rather, it should also take stock of its institutional processes, as they fundamentally shape the ability of the agency to be an effective regulator in the public interest. In short, the agency’s current lack of data-driven decision-making and emphasis on political dealing hinders the thoughtfulness of its analysis, limits its ability to address issues effectively, and invites a cynical attitude toward government. Unfortunately, legal scholars have not done their part to address the institutional failings of the FCC (and other administrative agencies, for that matter), glossing over the importance of institutional processes in favor of substantive policy analysis and generally focusing on the purely legal issues of administrative law as opposed to the actual operations of administrative agencies.
This Article proceeds in five parts. Part I briefly describes the longstanding criticisms of how the FCC operates, highlighting a few recent episodes that have drawn attention to the need for institutional reform. Part II discusses the opportunity for the FCC to adopt a new institutional strategy for telecommunications policymaking, emphasizing the importance of strategic agenda setting and transparency. Part III explains how the agency can use its policymaking tools-rulemaking, adjudication, and merger review-more effectively. Part IV underscores the opportunity for the agency to upgrade its collection and dissemination of data as well as its involvement of the public in its decision-making processes. Part V offers a short conclusion.
* Professor of Law and Telecommunications, University of Colorado at Boulder. Thanks to the Ford Foundation for a grant to support this research and to Dan McCormick on first rate research assistance as well as to Mark Cooper, Pierre de Vries, Kyle Dixon, Ray Gifford, Dale Hatfield, Mike Marcus, Jonathan Nuechterlein, Adam Peters, Jonathan Sallet, Cathy Sharkey, Jim Speta, and Joe Waz for valuable comments and encouragement.
 Newton Minow, Suggestions for Improvement of the Administrative Process, 15 Admin. L. Rev. 146, 153 (1963).
 Letter from John D. Dingell, Chairman, House Comm. on Energy and Commerce, to Kevin J. Martin, Chairman, Fed. Commc’ns Comm. (Dec. 3, 2007), available at http://energycommerce.house.gov/Press_110/110-ltr.120307.FCC.Martin.transparency.pdf (“Given several events and proceedings over the past year, I am rapidly losing confidence that the Commission has been conducting its affairs in an appropriate manner.”); Ted Hearn, Watching the Martin Watch, MultichannelNews, Jan. 21, 2008, http://www.multichannel.com/article/CA6524092.html (calling on the Senate to evaluate the “structure of the agency, its mission, the terms of the commissioners, and how to make the agency a better regulator, advocate for consumers, and a better resource for Congress”).
 Committee on Energy and Commerce Majority Staff Report, Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J.Martin (December 2008), http://energycommerce.house.gov/images/stories/Documents/PDF/Newsroom/fcc%20majority%20staff%20report%20081209.pdf [hereinafter, Deception and Distrust].
 John Eggerton, Martin: FCC Doesn’t Need Major Reform, Broadcasting & Cable, Jan. 15, 2008, http://www.broadcastingcable.com/article/CA6522942.html (quoting Martin as stating that “[i]n general, our processes aren’t any different than they were under previous chairmen both Republican and Democrat.”). Some longtime agency observers essentially second Martin’s judgment, noting that “[t]he FCC needs to reform and it has needed to for 25 years. . .Too much is done behind closed doors secretly and it has been that way through Democratic and Republican leadership.” Cecilia Kang, FCC Chair Abused Power, House Probe Finds, Washington Post, December 12, 2008, at D1, http://www.washingtonpost.com/wp-dyn/content/article/2008/12/09/AR2008120903132_pf.html (quoting Consumer Union’s Gene Kimmelman).
 Glen O. Robinson, Radio Spectrum Regulation: The Administrative Process and the Problems of Institutional Reform, 53 Minn. L. Rev. 1179, 1239 (1969).
 Reed E. Hundt & Gregory L. Rosston, Communications Policy for 2006 and Beyond, 58 Fed. Comm. L.J. 1, 31 (2006).
 In explaining his commitment to a serious evaluation of the Federal Trade Commission’s institutional processes (as part of an “FTC at 100” study), Chairman Bill Kovacic explained that “[t]he quality of institutional design, institutional infrastructure, and institutional process has a great deal to do with determining the quality of substantive outcomes. The same energy that’s dedicated to asking what’s the right doctrine or what’s the right conceptual framework has to be applied to questions concerning optimal institutional design and operational arrangements.” Interview with William E. Kovacic, Chairman, Federal Trade Commission, Antitrust Source 1 (August 2008), http://www.ftc.gov/speeches/kovacic/2008kovacicintrvwc.pdf.
 Jim Puzzanghera, Criticism of the FCC’s Chairman is Widely Aired, L.A. Times, Dec. 10, 2007, at C1 (“Critics have complained that important issues - such as the 2009 transition to digital television and reforming a fund that subsidizes phone and Internet service for low-income and rural residents - are taking a back seat to bickering.”). The often cavalier attitude toward regulation was described and bemoaned by Judge Posner as follows:
There has I think been a tendency of recent Administrations, both Republican and Democratic but especially the former, not to take regulation very seriously. This tendency expresses itself in deep cuts in staff and in the appointment of regulatory administrators who are either political hacks or are ideologically opposed to regulation. (I have long thought it troublesome that Alan Greenspan was a follower of Ayn Rand.) This would be fine if zero regulation were the social desideratum, but it is not. The correct approach is to carve down regulation to the optimal level but then finance and staff and enforce the remaining regulatory duties competently and in good faith. Judging by the number of scandals in recent years involving the regulation of health, safety, and the environment, this is not being done.
Richard Posner, Re-Regulate Financial Markets?, The Becker-Posner Blog, Apr. 28, 2008, http://www.becker-posner-blog.com/archives/2008/04/reregulate_fina.html.
 Unfortunately, the complaint of law professor and former FCC Commissioner Nick Johnson lodged over a quarter century ago still holds: “[r]ather than seeking methods for improving the administrative process to avoid unsound, unfair, and arbitrary decisions, scholars have focused almost exclusively on the role of courts in supervising and reviewing agency action.” Nicholas Johnson, The Second Half of Jurisprudence: The Study of Administrative Decisionmaking, 23 Stan. L. Rev. 173, 173 (1970) (reviewing Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (1969)) [hereinafter, Administrative Decisionmaking].