Reforming the FCC

* 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.

[1] Newton Minow, Suggestions for Improvement of the Administrative Process, 15 Admin. L. Rev. 146, 153 (1963).

[2] 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”).

[3] 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].

[4] Lawrence Lessig, Reboot the FCC, Newsweek.com, December 23, 2003, http://www.newsweek.com/id/176809.

[5] 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).

[6] Glen O. Robinson, Radio Spectrum Regulation: The Administrative Process and the Problems of Institutional Reform, 53 Minn. L. Rev. 1179, 1239 (1969).

[7] Reed E. Hundt & Gregory L. Rosston, Communications Policy for 2006 and Beyond, 58 Fed. Comm. L.J. 1, 31 (2006).

[8] 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.

[9] 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.

[10] 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].