Campaign-style tactics are the wrong way to influence agency decisions

by Randolph J. May
Legal Times, July 7, 2003

On June 2, a bitterly divided Federal Communications Commission voted along partisan lines to relax the agency’s decades-old media ownership restrictions that govern how many and what type of media outlets a single entity may own. Already, the Senate Commerce Committee has voted to reverse much of the agency’s handiwork.

I can understand that people may differ on the substance of the media ownership issue. But we need to understand that if the unusual tactics employed by those who opposed the FCC’s deregulatory initiative become the norm, sound agency decision making may be the loser.

On the day of the vote, from inside the agency’s headquarters CNBC reported that “the hearing room erupted in shouts and chants of protests.” Pickets marched and chanted outside the agency as well.

Other tactics not normally associated with even hotly contested FCC rule makings were employed during the ownership fight. An unprecedented mass e-mail, post card, and call-in campaign was organized by liberalization opponents, including the National Rifle Association and MoveOn.Org (a group encouraging political participation through electronic means). On June 4, the Wall Street Journal reported that the FCC received approximately 750,000 e-mails and letters, with the NRA responsible for generating nearly half, and MoveOn many of the rest.

What’s more, FCC Chairman Michael Powell, who along with his two Republican colleagues composed the commission’s majority, recounted that for a time before the vote the agency set up a 60-person center logging calls from the public. Also atypically, the two Democratic commissioners conducted public hearings on their own in several locations around the country.

There has been much comment on the merits of the FCC’s decision. What has been little remarked upon, however, is how the agency’s rule-making process, and those of other regulatory agencies, may be adversely impacted by the novel ways in which interested parties sought to influence the outcome of the administrative proceeding.

Changing Media Marketplace

First, some brief background on the substance of the FCC’s action. The ownership rules were put in place between 1946 and 1975, at a time when Americans got most of their news and information from the nightly newscasts of three major television networks and the local newspaper. The rationale for the original ownership restrictions was that they promoted a diversity of information sources, access to local information, and competition.

In the Telecommunications Act of 1996, Congress directed the FCC to review the ownership rules biennally to determine “whether any such rules are necessary in the public interest as a result of competition” and to repeal or modify those it determines “to be no longer in the public interest.” On four different occasions since then, the D.C. Circuit has admonished the agency that the existing rules are arbitrary in failing to consider increased media competition.

Today, more than 85 percent of American households subscribe to cable or satellite television systems that receive dozens and dozens of channels. And the Internet, possibly the most revolutionary communications medium ever, allows instant retrieval of terabytes of information—whether originating from the local newspaper across town or the “blogger” across the globe.

Taking into account the congressional direction and serial judicial rebukes, the commission modified the rules to allow newspapers to own a broadcast station in local markets, a single owner of television stations to increase from 35 percent to 45 percent the number of American households that it potentially may reach, and a single company to own two television stations in larger markets. To my mind, and the FCC’s majority, reducing the government’s role in dictating who may own media outlets, and leaving more play for the free marketplace, is justified by today’s competitive environment.

Others, of course, disagree strongly. At the FCC’s public meeting, Democratic Commissioner Michael Copps charged that the Republican majority was giving “a few corporations . . . veto power over the majority of what we and our families watch, hear, and read.” And Democratic Commissioner Jonathan Adelstein claimed the majority’s action “threatens to degrade civil discourse and the quality of our society’s intellectual, cultural and political life.”

Strongly expressed policy differences among the commissioners are all well and good. But what may not be so well and good is the way in which those opposing the rule change attempted to bring extraordinary public pressure to bear on the commissioners’ deliberations. Organized mass e-mail and call-in drives, pickets, and the like are usually associated with legislative and elective battles. If they become standard operating procedure at regulatory agencies, especially the so-called independent ones, a principal rationale for their existence may be called into question.

Insulated Expertise

The FCC and other regulatory agencies, such as the Securities Exchange Commission and the Federal Trade Commission, were creatures of the Progressive and New Deal era thinking that new forms of government administration were needed to tackle the more complex problems of modern society. The idea was that these multi-member agencies would act collegially, under fairly broad delegations of authority, and would bring specialized expertise and experience to the task of regulating particular industry sectors. With presidential appointment and Senate confirmation of agency members, along with congressional oversight and control over funding, the agencies certainly would not be immune from political influence. But it was thought that bipartisan membership and staggered commissioner terms would provide considerable insulation from the heat of everyday politics.

James Landis, a Felix Frankfurter protégé, Harvard Law School dean, FTC commissioner, and chairman of the Securities Exchange Commission, was a leading New Deal exponent of the specialized agencies. In his seminal 1938 book The Administrative Process, Landis argued, “In terms of political theory, the administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.”

Landis maintained that a natural consequence of government expansion “must be the creation of more administrative agencies if the demand for expertness is to be met.” More recently, in 1978, Alfred Kahn (the deregulatory-minded chairman of the now-defunct Civil Aeronautics Board) beseeched President Jimmy Carter to fill board vacancies with people “with special skills in making highly technical public economic policy—with training, and/or experience in the law, economics, regulation. I don’t need politicians.”

The Administrative Procedure Act requires that rule-making proposals be subject to notice and public comment (the media ownership proposals, for example, underwent two rounds of comment). The opportunity for comment by regulated parties and the public at large is not only a positive value in and of itself in a democratic society; it is the means by which relevant information is submitted that the agency otherwise may not have. Nevertheless, the type of hyped-up public input that occurred in connection with the media ownership vote does not contribute much to the agency’s application of its supposed expertise.

Consider the recent campaign aimed at the FCC. The 750,000 e-mails and letters with which the commission was bombarded, and which were cited by the opponents as a reason why the ownership rules should not be liberalized, were almost universally form letters generated by the campaign’s organizers. They contained little of substance relevant to the task of evaluating media competition or the diversity of information available. Putting aside questions concerning the ease with which mass e-mails may be generated and duplicated (and a casual perusal of the FCC’s database shows many messages by the same people recorded many times), at best these communications indicate that a significant number of people oppose relaxation of the ownership rules. The same may be said about those who marched and chanted at agency headquarters.

In a democracy, the importance of citizens having access to diverse sources of information cannot be overestimated. So it is not only perfectly appropriate, but valuable, for the American people to debate the media ownership issue and make their views known. My point here is not to suggest otherwise.
Altering the Agencies?

But I do suggest that we should be wary when the FCC is urged to base its decisions on plebiscites, polls, or protests. Movement in this direction almost certainly will alter our conception of the proper role of the regulatory agencies.

In this instance the commission majority apparently was not swayed by the emotional pleas of those insisting it heed what they claimed to be the popular will. But if the agency is ever perceived—even wrongly—to bend to the new protest tactics, no doubt it will invite a spiraling of ever more heated campaign-style activity. And, surely, all of the energy spent organizing populist demonstrations takes away energy and focus that could be better directed to the presentation to the agency of substantive arguments and reflective consideration of those arguments by the commissioners.

There is an appropriate place, of course, for plebiscites, polls, and protests. It’s called Congress. While I hope Congress doesn’t roll back the agency’s action, it is within Congress’ purview to do so.

So those who disagree with what the FCC has wrought should point their computer mice in the direction of Capitol Hill, and move their protests there as well. And, for the sake of preserving the idea of rational decision making informed by agency expertise, let’s hope the campaign-style tactics employed in the media ownership fight are an aberration rather than an incipient norm.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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