Rethinking Reform of the FCC: A Reply to Randolph May

I. INTRODUCTION II. RANDOLPH MAY'S CALL FOR AGENCY REFORM III. EXPLORING THE NEED FOR AGENCY REFORM XV. EXPANDING THE CONTEXTUAL SETTING OF THE REFORM DEBATE A. Previous FCC Decisions B. International Organizations C. Congress D. Federalism V. OFCOM ON THE POTOMAC VI. CONCLUSION I. INTRODUCTION Even the most strident opponents of regulation cannot fathom a world in which society does not--at some level--regulate the provision or consumption of information or communications. Even if markets function perfectly, we would still envision certain legal controls. A useful example of one such legal control is the First Amendment to the U.S. Constitution, which establishes firm boundaries on the government's ability to control information. Other forms of regulation may include the creation of a legal liability scheme if information is abused in some manner, such as libellous statements, copyright infringement, or identity theft. The absence of some form of regulation is unthinkable. But as a society, we have gone much further in our attempt to regulate information than merely enacting prohibitions on certain government or private actions. Our federal, state, and local policymakers have created extensive regulatory structures that govern everything from the provision of cable and telecommunications services using public rights of way, satellite and wireless services that involve a high degree of international coordination or standardization, and various media services, with both positive and negative content regulation. Providers of media and communications services are licensed, subsidized, monitored, and sanctioned to specify just a few of the most commonly employed regulatory techniques. The problems and opportunities for which we see a regulatory role seem endless. At the center of all this stands the Federal Communications Commission ("FCC"), a so-called independent federal regulatory agency that is composed of five commissioners, appointed by the President and confirmed by the Senate, not more than three of which are from the same political party. (1) The FCC is independent in the sense that, while it is subject to laws passed by Congress and court decisions, most of its actions cannot be directly overruled by the President through the administrative process. The FCC has an extensive array of responsibilities and obligations, a large budget and staff, and a prominent place in the heart of policymaking on media, technology, and communications. Further, because the FCC regulates several multibillion dollar industries that touch almost every aspect of our economic and social lives, its structure, remit, and activities are often subjected to severe scrutiny. But some argue that having the FCC stand at the center of all this policymaking is the wrong approach. They make a compelling case in many respects. Why should five unelected officials establish forward-looking policies that govern media and communications in our republic? Would it not be better to remove the bureaucratic mystery surrounding policymaking and have these sometimes contentious issues resolved by the President or persons answering directly to the President? The President is accountable directly to the American public and is often regarded as a swift decision maker. If there is controversy, what better focal point than the President? It is in this intellectual climate that the Administrative Law Review recently published Randolph May's essay on opportunities for reform of the FCC. (2) While this Article functions as a reply to May's essay, I salute May's many contributions to an important debate, namely, how best to structure society's control over the creation, distribution, and consumption of information. May's contributions are commendable as an initial matter for their very existence and nature. We should not regard our policymaking and regulatory structures as strictly bound by the idealist but perhaps unworkable principles of the past. …