Reform at the FCC is critical to good governance

Future historians may dub this era the “Age of Communications,” and they will be right. More than ever, the way we work, learn, travel, and connect with our communities is dependent on the ability of our people – and now, even our machines – to communicate. The Federal Communications Commission, the agency that oversees your telephone, radio, television, Internet, and satellite connections, is shaping our ability to earn a living, educate ourselves, travel safely, and connect with each other as it weighs in on public policy debates that will determine who benefits from these amazing technologies.

Rep. Marsha Blackburn (R-Tenn.), who heads a powerful congressional panel overseeing the FCC, says it best – it is important for the agency to do one thing: its job. The FCC has already taken a few welcome steps to increase the transparency and inclusiveness of its decision-making process, but this is not the only area of agency process that cries out for reform. The agency has a history of focusing on many things – unfortunately, not always in the right order.

The FCC devotes enormous time and energy to considering matters of basic national policy that would be better left to the elected legislative and executive branches of the government. Legislative fixes to problems would settle matters quickly and finally without the protracted judicial review process that follows most major FCC decisions. But instead of leaving policy-making to the professionals, the FCC sometimes neglects its core function of administering an orderly use of the nation’s airwaves and phone lines while focusing on matters which seem out of its purview: equal employment opportunity, education, prisoners’ rights, and other programs that may not be a part of the agency’s expertise or mandate.

{mosads}One of the FCC’s main duties, for example, is to resolve disputed cases. The FCC acts as an adjudicator in many cases where complaints are filed or parties have disagreements about the application of the law. Yet these cases are regularly placed on the back burner and often languish for years without a final decision. There is no excuse for this delay, which does a disservice to the litigants who are impacted by these unconscionable postponements.

There is also a perception that big companies get their cases acted on more quickly and get more lenient treatment than smaller companies. Big companies frequently are granted waivers, extensions of time, favored access to decision-makers, fast turn-around on applications and sales agreements, and lenient application of rules and regulations. Meanwhile, small companies are held strictly to the letter of the law and are cut little slack. They are pushed to the bottom of the pile when applications are processed. If equal justice under the law means anything, it should mean that everyone is treated fairly, consistently, and without regard to size or wealth.

Giving equal attention to companies big and small in its own decision-making would help the competitive playing field as well. This means giving some weight to comments filed by millions of members of the public. It has been my experience that people in the localities outside the beltway know what they want and need, and it would behoove the FCC to listen to them when it is identifying the “public interest.”

Lastly, process reform also includes the concept of making FCC decisions accountable to reviewing courts. Increasingly, the FCC has followed the approach of taking questionable or even flagrantly unlawful actions at the bureau level. This allows the unlawful action to become effective as the law of the land, yet an injured party cannot appeal the matter to the courts until the full FCC has ruled on the matter. There is no deadline for such action, so the FCC can effectively immunize itself from judicial review by delaying a final decision for years – and it does. Sometimes if the FCC delays long enough, the circumstances change enough that the whole matter is declared moot by the courts and justice is never done.

The FCC could be a model of how good government should operate: efficiently, transparently, accountably, openly, and without discrimination. The current commissioners generally have articulated their support for these principles, but the issue lies with following up. If the principles outlined above are followed, the FCC would reach better, faster and fairer decisions. It’s time for the FCC to remake itself for its own good, and the good of the people it aims to serve.

Donald Evans is a Washington, D.C.-based telecommunications attorney at Fletcher, Heald & Hildreth, and has represented clients before the FCC for nearly three decades.

The views expressed by contributors are their own and are not the views of The Hill.