Democracy & Technology Blog Shutting down the FCC

Rep. John D. Dingell (D-MI), the House Energy & Commerce committee chairman, is complaining that the FCC isn’t fair, open or transparent. Exasperated political partisans frequently complain about process out of frustration when there is insufficient popular support for their point of view to prevail on the merits. That’s what’s happening here.
Overlooking the many unfortunate attempts lately to re-regulate the cable industry and a few other lapses, the FCC has been extraordinarily successful in terms of removing unnecessary regulation, and Martin deserves much of the credit. In the telecom space, network operators Verizon and AT&T are investing billions upgrading their networks to provide competitive video services as a result of the fact the Bush FCC allowed the Regional Bell Operating Companies into the long-distance market, deregulated last-mile fiber facilities, put DSL and cable modem services on the same deregulatory footing and prohibited cable franchising authorities from unreasonably refusing to award competitive franchises for the provision of cable services. As AT&T and Verizon attempt to capture video market share, the cable operators are ramping up their investment in competitive voice services.
Now Martin is backing a timid proposal to allow someone who owns a newspaper in one of the 20 largest cities in the country to purchase a broadcast TV or radio station in the same market if it isn’t one of the top four TV stations in the community. That’s going too far for a New Dealer like Commissioner Michael Copps.
The commission ought to eliminate all media ownership restrictions now that it’s clear to any reasonable observer that the traditional “scarcity rationale” (i.e., limited spectrum availability) has completely eroded due to the availability of digital compression technology as well as competition from direct broadcast satellites, cable operators, telephone companies, wireless providers and unaffiliated Internet-based content providers such as iTunes , YouTube and opinionated bloggers. But if the FCC can’t or won’t do it, I am confident the courts soon will.
Dingell sent a well-publicized letter to Kevin Martin this month accusing the FCC chairman of stifling reasoned analysis and debate. No one nit-picks over procedure if it is seen as leading to the correct outcome. But procedure is always a convenient scapegoat for policy differences.
Dingell makes the following specific complaints:

the Commission does not put the text of proposed rules out for notice and comment; there is little public notice of certain Commission actions; and Commissioners are often not informed of the details of draft items until it is too late to provide the necessary scrutiny and analysis that is so important to reasoned decision-making.

Although Dingell doesn’t mention it, fairness, openness and transparency would also seem to require that the FCC abolish the practice of circulating written items for approval. GAO found that of 240 recent rules, only 101 were likely adopted at a public meeting while the other 139 appear to have been adopted in secret via circulation.
I would wholeheartedly support more transparency at the FCC. The FCC is a Soviet-style bureaucracy — it is secretive, insider-driven and produces decisions consisting of mind-numbing detail which frequently conceal goodies for friends and associates. But let’s be clear: that’s not Martin’s fault.
The FCC is unwieldy because of its mini-legislative structure. There are five commissioners appointed by the president and confirmed by the Senate, all of whom see themself as a significant public official entitled to celebrity treatment in Hollywood or Wall Street.
If Martin is trying herd the cats, it isn’t anything new. Former FCC Chairman Reed E. Hundt was criticized for acting like a CEO to marshal the full resources of the FCC to overwhelm the “tiny” personal staffs of his four colleagues.
Fairness, openness, and transparency, as envisioned by Dingell, would grind the FCC to a halt for the remainder of the Bush presidency. But that would be a small price to pay if the changes would apply with equal force to future chairmen — say, a Michael Copps, for example.
What about it, Mr. Dingell? If you will change the law to ensure fairness, openness, and transparency at the FCC, I would certainly support you; as would many other free-market advocates, I suspect.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.