ANALYSIS

The FCC’s Relationship Status: It’s Complicated

Bruce Gottlieb
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Bruce Gottlieb
Nov. 15, 2011, 4:30 p.m.

As the Obama ad­min­is­tra­tion’s first term draws to a close, the Fed­er­al Com­mu­nic­a­tions Com­mis­sion and Con­gress are squar­ing off for a pre­dict­able tussle. The top­ic, as usu­al, is “agency re­form.”

Three years in­to a pres­id­en­tial term, es­pe­cially un­der a di­vided gov­ern­ment, the top­ic is al­most al­ways agency re­form. If Act 1 of a new chair­man­ship be­gins with ritu­al­ist­ic pledges (of­ten sin­cerely felt) to work across dif­fer­ences, Act 2 is com­posed of fierce and bruis­ing policy dis­agree­ments (the af­teref­fects of which are even more deeply felt).

And now, with an up­com­ing elec­tion and ma­jor per­son­nel changes loom­ing, comes Act 3: a meta-de­bate over how the agency makes de­cisions. It is more or less the policy equi­val­ent of a di­vorce pro­ceed­ing — the fi­nal hash­ing-out of griev­ances be­fore start­ing afresh.

Four years ago, Re­pub­lic­ans con­trolled the FCC and Demo­crats the Con­gress. Act 3 began with the House En­ergy and Com­merce Com­mit­tee an­noun­cing its in­ten­tion, at the end of 2007, to in­vest­ig­ate “an ap­par­ent break­down in an open and trans­par­ent reg­u­lat­ory pro­cess” at the FCC. It ended, a year later, with a fi­nal in­vest­ig­at­ive re­port whose 12-word title ef­fi­ciently sums up the ma­jor find­ings: “De­cep­tion and Dis­trust: The Fed­er­al Com­mu­nic­a­tions Com­mis­sion un­der Chair­man Kev­in J. Mar­tin.”

Now, the Re­pub­lic­an-con­trolled com­mit­tee is go­ing one bet­ter. Earli­er this month, Com­mu­nic­a­tions and Tech­no­logy Sub­com­mit­tee Chair­man Greg Walden, R-Ore., along with Sen. Dean Heller, R-Nev., in­tro­duced a pro­cess-re­form bill that would amend the un­der­ly­ing law that au­thor­izes the FCC. It is sched­uled for markup on Wed­nes­day.

The ef­fort is clearly rooted in sub­stant­ive ob­jec­tions to re­cent FCC de­cisions, most not­ably net­work neut­ral­ity, the Com­cast mer­ger con­di­tions, and a be­lief that the agency is in gen­er­al too quick to reg­u­late.

But, sig­ni­fic­antly, the bill avoids sub­stant­ive is­sues and in­stead sets out strict pro­ced­ur­al re­quire­ments the FCC must meet be­fore it cre­ates any new rules, as well as tight­er stand­ards for mer­ger con­di­tions.

The prob­lem is that lack of pro­ced­ure is not what is wrong with the FCC. In­deed, the agency already has far more baroque pro­ced­ur­al re­quire­ments than any com­par­able private de­cision-mak­ing en­tity — or the Con­gress it­self, for that mat­ter (which shifts from fact-gath­er­ing to en­act­ing ac­tu­al laws at the pace it sees fit).

The basis for ex­ist­ing prac­tices is the Ad­min­is­trat­ive Pro­ced­ure Act, to which the FCC, like al­most all fed­er­al agen­cies, is already sub­ject.

Lay­er­ing new pro­ced­ur­al re­quire­ments on top of ex­ist­ing ones would ef­fect­ively halt the cre­ation of nearly any con­ten­tious new FCC rules — in oth­er words, achieve a res­ult more or less like what Texas Gov. Rick Perry had in mind for the Com­merce and Edu­ca­tion de­part­ments.

This is not to deny that good pro­ced­ures are crit­ic­al to cre­at­ing good policy. But no form­al pro­ced­ur­al rules, no mat­ter how strictly en­forced, can pre­vent bad de­cision-makers from mak­ing bad de­cisions.

So why are agen­cies and their con­gres­sion­al over­seers so locked in­to dis­cuss­ing pro­cess rather than sub­stance? One can­did ex­plan­a­tion comes from an ex­change that Rep. John Din­gell, D-Mich., had with the Re­pub­lic­an chair of the FCC in 2007 dur­ing an es­pe­cially con­ten­tious hear­ing. Din­gell, a fam­ous pro­cess hawk, ex­plained:

“I al­ways am in­ter­ested in the sub­stance, but I am very, very in­ter­ested in the pro­ced­ure be­cause my old daddy taught me a little les­son way back when I was young. He said, son, if you let me write the pro­ced­ure and you write the sub­stance, I will over­come you every time.” [ht­tps://house.re­source.org/110/org.c-span.202772-1.pdf]

Lurk­ing in the back­ground here is an ac­know­ledg­ment of the un­easy, com­plic­ated re­la­tion­ship between ex­pert agen­cies like the FCC and the Con­gress that over­sees them.

On one hand, agen­cies are cre­ated be­cause they are uniquely cap­able of de­vel­op­ing ex­pert­ise in com­plex, spe­cial­ized areas like tech­no­logy, sci­ence, and eco­nom­ic ana­lys­is — much more than the Con­gress that cre­ates them and the judges who grade their home­work.

Against this back­ground, le­gis­lat­ors of both parties must be care­ful about too much second-guess­ing on the basis of sub­stance (though it hap­pens). It would be a bit like a pa­tient re­fus­ing to take medi­cine on the the­ory that it tastes bad.

On the oth­er hand, Con­gress is also deeply sus­pi­cious of the agen­cies it has cre­ated, es­pe­cially when they are staffed with polit­ic­al lead­er­ship of the op­pos­ite party. (Courts are, too.)

And Con­gress is right to be sus­pi­cious — bur­eau­cra­cies can take on a life of their own, and not in a good way. The FCC is cer­tainly no ex­cep­tion.

So the typ­ic­al com­prom­ise is for le­gis­lat­ors to wait un­til enough sub­stant­ive de­cisions they don’t like have been made. And then they will at­tack the pro­cess, of­ten pro­pos­ing pro­ced­ur­al changes that are sub­stance by oth­er means.

Act 3 rarely ends up in ac­tu­al, bind­ing policy changes — and this latest ex­er­cise is not likely to prove an ex­cep­tion.

But soon we will have a new cast of play­ers, who will be­gin the over­sight re­la­tion­ship anew. Un­doubtedly, they will be­gin the pro­cess with high hopes of co­oper­a­tion on sub­stance. They should bear in mind that 2015 — and the po­ten­tial for yet an­oth­er pro­cess-fo­cused Act 3 — is just a few short years away.

NOTE: Bruce Got­tlieb is gen­er­al coun­sel of Na­tion­al Journ­al‘s par­ent com­pany, At­lantic Me­dia. Un­til last sum­mer, he was chief coun­sel and seni­or policy ad­viser to the cur­rent chair­man of the FCC, Ju­li­us Gen­achow­ski, and be­fore that, he was an ad­viser to Com­mis­sion­er Mi­chael Copps.

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