FCC Ex-Officials Urge Commission Reform

The next FCC must promote intensified market investment, while discouraging consolidation, market shrinkage and withdrawal, Hundt said. Fortune 500 companies have billions to invest, but aren’t doing it, he said. The FCC must determine how to encourage businesses to invest in non- residential fixed assets within the U.S., he said.

The FCC should sit down with staff from all levels to consider the right structure for the market, Kennard said. “Quite frankly, I wish that I had done that,” he said. But the agenda of Kennard’s FCC was driven by implementation of the 1996 Telecom Act, he said. By not looking at market structure, “what we faced was a wave of mergers, and the agency really didn’t have a framework within which to decide those mergers,” he said. As a result, Kennard’s FCC tried to prevent potential merger problems by imposing conditions, he said. “In retrospect, that was the wrong thing to do, because we didn’t realize that… conditions are temporary, and most of the conditions we put in place were done away with by the next administration.”

After the FCC determines the right market structure, the agency should reorganize itself, eliminating outdated technology silos, Kennard said. It can’t fix structural problems by simply moving around the boxes, he said. Hundt agreed: “The system that has operated for the last several years… hasn’t been good” for the FCC chairman, commissioners, executive branch or the country, he said. Meanwhile, the FCC should build rapport with other areas of government, such as healthcare and labor agencies, and incoming telecom leaders in Congress, Kennard said.

The FCC must reform process and procedure, Kennard said. And the “culture of politicization” at the FCC needs to go, he said. “It is almost embarrassing sometimes to try to figure out how a rulemaking goes from notice of inquiry to final rule,” he said. Under existing process, comments in rulemakings are seen as just an “opening gambit,” with real decisions made in meetings taking place just before sunshine, he said.

The next chairman should benefit from having a president in the White House who “loves” technology, Kennard said. When Kennard was chairman, for example, he could always get help from Vice President Al Gore, he said. The Obama administration appreciates how technology can advance major U.S. priorities like the economy, healthcare and energy independence, he said.

Keeping Focus

Congress will exercise more oversight of the FCC in the 111th Congress, said Jessica Rosenworcel, senior counsel for the Senate Commerce Committee. Congress’ challenge is to both oversee the FCC and update communications laws, Rosenworcel said. But “we can’t quite dictate in the law today where technology will take us tomorrow,” she said. The commission should be a “straightforward implementer of the wishes of the Congress,” she said. It should also be a storehouse of expertise and a neutral fact finder that resolves disputes, Rosenworcel said. Most importantly, it should be accountable to the public, she said.

The commission should adopt clear rulemaking timetables that ensure against both rash action and long delays, said Prof. Phil Weiser from the telecom law program at the University of Colorado. Public hearings on FCC procedures are “absolutely necessary,” Weiser said. Defining the public interest is the most important and challenging task for a new commission, said Mark Cooper, the director of research at the Consumer Federation of America. The commission must open the rulemaking process, putting actual rules out for public comment and engaging the public fully in the process, said Cooper. Public Knowledge announced it will launch an www.fcc-reform.org Web site.

The next FCC should write a strategic plan and stick to it, said ex-FCC commissioners and others on a separate panel. “Keep your eye on the ball and rise above the noise,” said former Commissioner Kathleen Abernathy. Keeping focus can be tough, she said, because the agency is “bombarded daily with other demands,” including court proceedings, requests from Congress, and other issues carrying deadlines. A chairman can stay on track by trusting FCC staffers to tackle big issues, she said. “If you get mired in the day-to-day normal operations of the agency … you lose sight of where you want to take the agency … [and] you end up taking very intelligent people and not allowing them to do their job.”

The FCC could ease its workload by studying internal processes at a microscopic level, said former FCC commissioner Nicholas Johnson. “Somebody needs to talk to every single person there,” and ask: “What are you doing, why are you doing it, who told you to start, [and] why in hell didn’t anyone tell you to stop?”

The FCC can also get derailed due to a lack of deadlines on priority issues, Abernathy said. On a particularly hard problem, it’s easy for the FCC to put it off, ask for more data and hope for a “magic answer,” she said. Still, the FCC must still be careful not to rush to judgement, warned Ellen Goodman, a law professor at Rutgers University.

Some said the Sunshine Act has made the FCC a less efficient agency. Before the Act, which prevents multiple commissioners from meeting behind closed doors, commissioners fought harder, with disagreements sometimes coming “almost to fisticuffs,” said Henry Geller, former NTIA administrator and a former FCC general counsel. Now, work is done ahead of time, and meetings are like Kabuki theater, he said. Sunshine has been one of the main deterrents to debate among commissioners, agreed Abernathy. As a result, commissioners are forced to argue through their legal aides, she said. The Act is important in preventing three commissioners from cutting deals together, but closed-door meetings among all five commissioners should be permitted, she said.

The FCC should open dialog with academics on important issues, some panelists said. If universities were involved in the process, for example, professors could ask graduate students to write dissertations on major problems, said former FCC Commissioner Johnson, now a law professor at the University of Iowa. If the FCC were to tee up research questions, it would likely get a big, eager response from academics, said Goodman. Academics probably would have an easier time getting funding for research formally commissioned by the government, she added.