Reforming the FCC

To appreciate the overall lack of strategic agenda setting at the FCC, consider the model of regulation used by the European Commission (EC). The EC uses a tripartite process to gather information and engage the public when it formulates its regulatory strategy. First, it encourages its staff members to develop their views and perspectives in working papers, which they release to the public. Second, the agency commissions independent research to inform the agency’s own thinking. Finally, it engages the public, opening up what it calls a “consultation,” to seek diverse views and perspectives on the relevant issues. Based on this process, the EC is in a position to develop its overarching regulatory strategy for a broad policy area, such as the transition to the next generation of Internet technology and the role for public policy therein.^[67] In that context, for example, the EC has set out its specific goals and outlined a timetable for consideration of a number of the relevant issues.^[68]

The EU is hardly alone in using a model of regulatory policymaking that involves considerable up-front analysis and discussion before setting an overarching course. Ofcom, the regulator established in the UK in 2003, has internalized a commitment to strategic policymaking. To that end, it embarks on a series of broad reviews, uses regular consultancies, and issues “Annual Plans” to explain its views on the general regulatory environment and what issues will be addressed going forward.^[69] Moreover, in a case closer to home, consider how the Federal Trade Commission (FTC) is engaging in a systematic effort to increase its knowledge base on emerging issues such as behavioral advertising.^[70] In that context, the agency first identified the issue as part of its set of hearings on “Protecting Consumers in the Next Tech-Ade,” where it invited a large number of stakeholders to offer their perspectives. Resulting from that investigation, the FTC hosted a Town Hall on “Behavioral Advertising: Tracking, Targeting, and Technology.” Finally, after an effort by FTC staff to identify a set of principles and issues for resolution, the agency released a document entitled “Online Behavioral Advertising: Moving the Discussion Forward to Possible Self-Regulatory Principles,” inviting further comments from stakeholders.^[71] By contrast, the FCC generally collapses all three of these steps into a single process that all too often begins with a broad and vague notice and ends with a blizzard of ex parte filings and rules adopted in haste, without sufficient deliberation, public input, or transparency.

It merits note that the model of strategic agenda setting urged here is not completely foreign to the FCC. Such an approach, however, has yet to take hold as part of the agency’s culture. Consider, for example, the extremely thoughtful framework developed by Chairman Kennard in his vision of “A New Federal Communications Commission for the 21^st Century.”^[72] In his vision document, Chairman Kennard highlighted the importance of identifying high level strategic priorities and specific measures that the agency proceeds to implement them. Notably, he focused on the value of moving away from classic technology-based distinctions, urging the Commission to focus instead on [1] universal service, consumer protection, and information; [2] enforcement and promotion of pro-competitive goals domestically and internationally; and [3] spectrum management.^[73] In so doing, he presciently identified that the traditional divide between local and long distance communications would disappear and broadband communications would eclipse narrowband. Unfortunately, while Kennard’s vision document identified very important, forward looking questions-such as “whether and how the government should be involved, if at all, in applying [the historic commitment to open architecture and interconnection] in [an environment] where competition will largely replace regulation[,]”^[74] it failed to provide any framework to generate answers for them or timeline for the relevant questions to be addressed.

When Chairman Powell replaced Chairman Kennard, he declined to embrace and follow through on the vision set forth in the “A New Federal Communications Commission for the 21^st Century.” In particular, he did not seek to fundamentally restructure the operations of the agency along functional lines,^[75] as Kennard had begun to do by consolidating the agency’s enforcement and public information functions and had envisioned in his framework.^[76] Although Powell did not take any transformational steps to align the agency’s operations on functional lines, he did take the important step of recognizing the impact of technological convergence by merging the separate Mass Media and Cable Bureaus. Moreover, he appreciated, in principle at least, the importance of setting broad areas of focus and identified six of them-(1) broadband; (2) competition; (3) spectrum; (4) media; (5) public safety and homeland security; and (6) the modernization of the FCC. He did not, however, offer any “meta” strategy for how to conceive of and pursue them.

In the important area of spectrum reform, Chairman Powell developed a strategic and broad agenda through a process not unlike that used by the EC. In particular, he commissioned the creation of an interdisciplinary task force that drew upon a number of talented public servants to think through and broadly reconceive of the goals of spectrum policy. The Spectrum Policy Task Force report that emerged from that process gave rise to a number of important issues to evaluate and marked a rare instance where the FCC sought to set a pro-active agenda.^[77] Moreover, the Task Force’s work and its effort to identify relevant proceedings in a comprehensive and coherent manner markedly distinguished the treatment of that area from other priorities of the agency.^[78] To underscore the point, consider that the only other one of the six priorities noted above where the agency displayed a hint of broad strategic thinking was public safety and homeland security, where it adopted (in 2003) a two-page action plan to govern its efforts in the area.^[79]

Under Chairman Martin, the broad goals identified by Chairman Powell were kept in place, but the broad project of spectrum reform as identified by the Task Force report was essentially abandoned without any effort to set alternative strategic priorities.^[80] In so doing, the agency left spectrum policy issues to once again be addressed on an ad hoc basis-i.e., without the benefit of any overarching commitment to resolve particular issues, a more developed empirical and theoretical framework for regulatory policy, or any commitment to communicating to the public the agency’s perspective on those issues. Reflecting the frustration that telecommunications issues are not guided by any overarching agenda and thus appear on (and disappear from) the agency’s agenda without apparent reason or warning, some commentators have complained that the FCC is “the worst communicator in Washington.”^[81]