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.
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