Legally Speaking, An FCC Out of Control?

(CBS)  Randolph J. May is President of the Free State Foundation, a free market-oriented think tank located in Rockville, Maryland. He is the editor of the new book, New Directions in Communications Policy.

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Over the past decade or so, the FCC's review of proposed mergers of communications companies has gotten much more unseemly as the Commission often has resorted to the practice of extracting midnight "voluntary" commitments from the merger applicants in exchange for approval of a merger.

I first wrote about this unseemly practice in a March 2000 Legal Times piece entitled "Any Volunteers?" The Commission's practice of using its unbridled discretion under the vague public interest standard to force companies to engage in what I then called "the FCC's version of 'Let's Make a Deal'" denigrates the notion the agency is deciding mergers on a principled basis under a rule of law regime. Instead, the process smacks more of politics than principled decisionmaking.

Unless it is careful, the FCC risks further erosion of confidence in the way it handles merger proceedings in connection with its review of the proposed Comcast-NBCU merger. The "public interest" groups, such as Free Press, Public Knowledge, and Media Access Project, are leading a full-fledged assault on the merger. (Because the public interest is, as noted above, an indeterminate standard, any entity is free to call itself a public interest group, and, of course, media outlets are free happily to embrace such self-designation for some groups but not for others that might not meet their own conception of what is in the public's interest.) It is the perfect right of such groups to oppose the Comcast-NBCU merger if they please, and, indeed, to do so vigorously. No problem with that.

The problem arises with some of the tactics the groups employ in mounting such opposition. These tactics have the effect of undermining the role of the FCC acting independently on the basis of its expertise and experience. And the problem is only compounded if the Commission allows itself to become complicit - or, in effect, an enabler - in a process that begins to look more like a political advocacy campaign than a reasoned decisionmaking process conducted under established administrative law norms.

Here's a sampling of what I have in mind when I refer to problematic tactics in the context of an FCC proceeding, such as the proposed merger, which is principally adjudicatory in nature.

Free Press is promoting a video it calls "How to Save the World from Comcast" that begins by announcing the Comcast merger "is headed for us like an asteroid" and gets more untethered from earth-bound facts from there. On the same "Stop the Merger" web page, Free Press urges its supporters to use a suggested comment form to enter a brief comment to be forwarded to the FCC. As Broadcasting & Cable's John Eggerton observed in a May 21 report, Free Press's tactic is beginning to swell the FCC's public docket with comments, although many just adhere to the suggested form and some appear to be duplicates filed by the same person. Finally, along with other groups, Free Press is urging the FCC to hold a number of public hearings around the country so that people can express their views on the merger.

Crux of the Problem

As I said, the problem is not that Free Press, Public Knowledge, Media Access Project, or any other group, wishes to participate in the FCC's process and express their opposition to the merger. They are free to express such opposition in any way that conforms to the agency's rules. The problem arises if the Commission allows itself to be influenced or distracted by the groups' tactics in a way that delays what ought to be the agency's timely consideration of the merger or that detracts from what should be - and what should appear to the public to be -- a deliberative process focused on evidence directly relevant to established decisional factors.

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[nickjacket]

The FCC does not serve the public. The FCC responds to the public in a somewhat timely manner.
Don't try to tell me that the FCC is going to be spread thin if it holds public hearings. The FCC is no darling that needs protection from its own incompetence.
Let's start with the Telecom Act of 1996. The FCC has been asking for it for a long time and if you think that public input, no matter what format, is degrading the FCC in its mission, you have another thing coming.

[tmittelstaed]

Unfortunately the FCC's regulation of the newer communication forms of the Internet has ALWAYS tended to the mnopoly. The FCC's view is that if all telephone, all radio, all Internet, all TV is created & distributed by a single large entity, that this entity can raise prices with impunity, whereupon the FCC can cause some of the gains from higher prices to be diverted to the so-called "rural" communication users to "bring them on board" It amounts to nothing more than a giant subsidy operation from the dense city cores, where bringing communication services in is highly profitable, to the rural, sparsely settled areas, where bringing in communication services is highly unprofitable.

This philosophy, which came out of the early 1900's when the Bell Telephone company was extending phone lines in all directions, may have been appropriate at the time. The United States was a much different country then and a much larger percentage of the population lived in rural areas.

But today this philosophy is clearly obsolete. To put it simply, such a small percentage of the US population lives in rural areas now that it really doesen't matter much for country cohesiveness for them to be "put online" with the latest communication infrastructure, at government subsidy. After all, they all have telephones anyway, so it's not a life/health/safety issue. What is is, is whether or not 5 farmers out in the sticks can get on the Internet at their home, and surf the web, or whether they have to drive into town and do it. The FCC would see hundreds of city dwellers subsidize the tens of thousands of dollars to bring a cable line to those 5 farmers and it's ongoing maintainence.

It must be recognized that today, living in a rural area is a choice, that comes with benefits. You get clean air, privacy, and space. Your kids can play in the creek. You can know your neighbors. But you DON'T get HDTV and 20Mbt Internet feeds unless you pay a lot of money. Unfortunately, the FCC has lost sight of this simple fact.

[billgannon]

Free Press, Public Knowledge, Media Access, all are nothing more than communist propaganda. Their mission is to bring free speech in editorial content to complete stop, kill the internet, so the only word spoken is that of the communist propaganda. For those who remember the cold war does Pravda ring a bell, sounds like old times but with a twist, Pravda is here now, WAKE UP AMERICA and look beyond your nose at what is happening to this country ask your self one question, are things in this country getting better, by that, are more of your neighbors returning to work or are more being layed off?