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.