Monday, March 24, 2008

FCC Reform: Changing the Institution

Since it was created in 1927 as the Federal Radio Commission, and reincarnated in 1934 as the Federal Communications Commission, the FCC has undergone remarkably little fundamental institutional change. To be sure, there have been some changes that impact the way the FCC does business. For example, in 1982, the number of commissioners was reduced from seven to five. The enactment of the Sunshine Act in 1976 affected the way the Commission operates, and the way the commissioners interact – or don’t – with each other. Compared with its preferred mode of regulating during its first few decades, for almost the last half-century the agency has regulated primarily through conducting ex ante rulemaking proceedings rather than post hoc adjudications.

For the most part, it is fair to say that, in fundamental respects, the agency functions much the same today as it has for decades. Certainly, this is true in the decade since the passage of the Telecommunications Act of 1996, which was billed by Congress as “pro-competitive” and “deregulatory” and by President Bill Clinton as “truly revolutionary legislation.” And it is true despite the fact there have been unprecedented marketplace changes resulting in increased competition in all market segments subject to the FCC’s jurisdiction and a definite blurring of traditional service categories due to the transition from analog narrowband to digital broadband communications.

In August 1999, then-FCC Chairman William Kennard released a strategic plan called “A New FCC for the 21st Century.” The first two sentences presciently read: “In five years, we expect U.S. communications markets to be characterized predominately by vigorous competition that will greatly reduce the need for direct regulation. The advent of Internet-based and other new technology-driven communications services will continue to erode the traditional regulatory distinctions between different sectors of the communications industry.” As a result, the plan continued, “[t]he FCC as we know it today will be very different in structure and mission.”

Since then, while there has been some rearranging and renaming of the boxes on the agency’s office organizational chart, it would be a stretch to say today’s FCC is “very different in structure and mission.” Nevertheless, the agency’s annual budget has continued to grow each year, from around $200 million in 2000 to $338 requested for FY 2009.

‘Nuff said, for now. All of the foregoing is my way of calling your attention to a lunch program I am moderating on April 3. The program, sponsored by the American Bar Association’s Section of Administrative Law and Regulatory Practice, is entitled, “FCC Reform: Changing the Institution.” There is a stellar line-up of very knowledgeable speakers: John Duffy, Professor, George Washington University School of Law; Sam Feder, Partner, Jenner & Block and immediate past FCC General Counsel; Andrew Schwartzman, President, Media Access Project; and Joe Waz, Senior Vice President of External Affairs and Public Policy Counsel, Comcast Corporation. The panel will address both potential major structural institutional reforms, which likely will be achieved, if at all, on a longer-term basis, as well as process-oriented reforms that possibly could be implemented over the near-term.

Achieving institutional change is never easy. Even with “change” this year’s dominant campaign mantra, I can’t promise this is the year there will be fundamental institutional changes at the FCC. But as the moderator of this program, I can promise the discussion will be lively and informative.

To sign up, click here.