Friday, July 19, 2013

FCC Reform: Return to the Rule of Law

For Deborah Taylor Tate

Congressman Greg Walden should be applauded for doggedly holding a Congressional hearing on the much needed review, reform, and reinventing of FCC procedure and process. He is expected to introduce legislation similar to the FCC Process Reform Act and FCC Consolidated Reporting Act that passed the House of Representatives last year, only to die in the Senate.
In the meantime, the FCC should not wait for legislation to pass to adopt some simple, common sense reforms of their own. In fact, first they just need to return to the "rule of law,” not the "rule of man" (With two female Commissioners, I suppose this will have to be the "Rule of Women" now!).
Too often the personality of the agency leadership has resulted in expansion – broad expansion in some cases – of the specific legal authority granted by Congress to the FCC. The office of FCC Chairman has been expanded far beyond the letter of the law. It needs to be curtailed by self-control, aside from whether a new law is passed. Some people remember a time when two or more commissioners could bring forward a proposed order or place an item on circulation. During my tenure as an FCC commissioner, even four commissioners – a bipartisan group of four – were unable to do so.
In other examples, the Chairman has expanded the agency's oversight into areas of the law which are clearly beyond any legal authority. In most of those cases, after thousands of hours of work by public employees, and taxpayer and industry dollars spent, courts generally have overturned this abuse of power. Just think if that energy and money had been used on reports to Congress, review of consumer complaints, and enforcing the law of the land.
Another specific example of this expansion of the agency's legal authority involves mergers. While we have all become accustomed to the imposition of merger conditions, those conditions should only relate specifically to a "harm" which is likely to occur as a direct result of the specific merger under consideration. Mergers conditions somehow have become “the kitchen sink” for every policy notion or alleged "wrong that needs to be corrected," whether or not they legitimately relate to the merger at hand. In addition, the merger conditions take on quasi-statutory significance and are then applied to other companies in the sector or those in the "same circumstance."
I regret that I, too, voted to approve mergers with such conditions during my tenure and hope the present FCC will use a little more restraint in what may be a very busy merger time in the days and months ahead. Certainly, competitive harms or other potential wrongs should be addressed, but only through proper legal vehicles and certainly not in the dark of night just to get a deal done.

The Free State Foundation’s President Randy May has repeatedly called upon the FCC to reform itself and his testimony at last week's House Commerce Committee hearing again addressed these important issues. FSF recently held a standing-room only luncheon on the topic of “FCC Process” where scholars, industry representatives (regulated through these processes), and former commissioners presented a number of thoughtful ideas on Commission reform.
Many of the issues mentioned address the topic of speed of process – or lack thereof – a constant criticism of the agency. I have previously suggested utilizing any and all willing commissioners to oversee an item and draft a proposed order, working in conjunction with the relevant expert staff, to speed up the time required to get an order on circulation. Oftentimes, a particular commissioner has had specific industry or issue expertise which could provide great insight along with alacrity.
Other ideas regarding expediency include setting a specific timeline for completing consideration of each order – a "shot clock" that could be keyed to the subject matter. Or the establishment of a true mediation process in appropriate cases as a way to achieve quicker turn around, allowing regulated parties to opt for mediation. Not only have trial courts learned this is often a more efficient process, but also one in which the parties often have more control over outcomes. Other creative procedures could include a "weekly docket call" to dismiss hundreds, if not thousands, of filings that have languished for years.
Often the FCC has failed to utilize its own expert advisory bodies effectively – or at all. In fact, the Commission could pose a question with a specific timeline and/or even request a list of solutions and alternatives from which to choose. Why have expert advisors if you don't utilize their real world experience and expertise? And, once delegated authority over issues or complaints has been thoroughly vetted and specifically granted by a vote of the Commission, Bureau Chiefs should utilize that authority – and nothing more – to resolve identical issues with identical decisions. This enhances both agency efficiency and provides consistent outcomes for industry. Further, in very specific cases in which a decision may actually have broad, industry-wide impact, the Commission should proactively grant broad waivers for similarly situated entities rather than clogging up the system with unnecessary and redundant case-by-case-by-case reviews.
While it may take congressional approval to change the "Sunshine Law" (which should be known as the "Unable to Communicate Law"), perhaps it will only take a dose of personal humility, a clear understanding of legal authority, and a little trust in one's fellow commissioners to make the agency operate more efficiently – so that it hums like the industries and sectors it oversees.