A Better Agency: Reforming the Federal Communications Commission

By Walden, Greg P. | Federal Communications Law Journal, November 2016 | Go to article overview

A Better Agency: Reforming the Federal Communications Commission


Walden, Greg P., Federal Communications Law Journal


TABLE OF CONTENTS    I.  INTRODUCTION                                        386  II.  COST-BENEFIT ANALYSIS                               389 III.  MERGER REVIEW                                       390  IV.  DUE PROCESS AND THE TIMELY PUBLICATION OF PROPOSED       RULES                                               391   V.  DEADLINES FOR ACTION ON PUBLIC FILINGS              392  VI.  TRANSPARENCY: PERFORMANCE METRICS AND OPERATING       MANUALS                                             393  VII. INDEPENDENT INSPECTOR GENERAL                       395 VIII. CONCLUSION                                          396 

I. INTRODUCTION

When I was a broadcaster in 2003, I filed a petition with the Federal Communications Commission (FCC) to license a couple of translators for our stations in Oregon. (1) While the licensing of a translator is not a trivial matter, it is one that the FCC's Media Bureau should be very familiar with and be able to address in short order. After all, licensing of radio stations is one of the core functions for which the FCC's predecessor agency, the Federal Radio Commission, was created in 1927. (2) The FCC granted my petition in December 2013, (3) approximately ten years after I filed the petition and six years after I sold the stations in 2007. (4)

This story depicts an agency utterly unconcerned with the quotidian yet necessary tasks that serve its constituents. Indeed, the FCC has been criticized on a variety of fronts for its process failures. (5) As former University of Colorado Law School professor Philip Weiser wrote in 2009: "[T]he great weight of opinion is that the FCC has always operated in a suboptimal fashion and is in dire need of institutional reform." (6) Professor Weiser went on to quote former FCC Chairman Reed Hundt, saying "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.'" (7) Congress, led by both Democrats and Republicans, has produced numerous reports detailing the FCC's miscarriages and disappointments over the past ten years. (8) The FCC itself has called for its own reform over and over again. (9)

Different critics ascribe different reasons for the agency's failures, but I consistently return to two structural factors that leave the FCC prone to such defects as Chairman Hundt described. (10) The first factor is the public interest standard under which the FCC is required to review mergers and regulate spectrum licenses, (11) and the second is the plenary authority of the Chairman, who, as a member of an independent agency, may not be removed except for cause. (12)

First, allow me to qualify this statement by noting that this is by no means an indictment of the public interest standard. The entire purpose of the government should be to serve the interest of the public. "By the people, for the people" (13) are words that every American child learns and every citizen recognizes as a basic tenet of the American ethos. My concern, however, is that the noble aims of the public interest standard are too easily hijacked and converted to convenient pretexts for political, personal, or other agendas.

As other critics have pointed out, the public interest standard has little definition. (14) Nobel Prize-winning economist Ronald Coase flatly stated that "[t]he phrase ['public interest, convenience, or necessity']... lacks any definite meaning. (15) Furthermore, the many inconsistencies in FCC decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation." (1)6 Even the FCC's own leadership has pointed out that the public interest standard "is vague to the point of vacuousness, providing neither guidance nor constraint on the agency's action." (17) Simply put, those charged with upholding the public interest standard are too easily convinced that their own values are those that are in the public interest. …

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