The Federal Communications Commission

The Yale Law Journal Volume 82, Number 8, July 1973 A Day in the Life: The Federal Communications Commission Nicholas Johnson* and John Jay Dystel* "I read the news today, oh boyl"-The Beatles "A Day in the Life" For seven years I have struggled with the FCC in an effort to in- ject some rationality into its decision-making process and to reveal its workings to the public. There is reason enough to assert that everything the FCC does is wrong.1 But, like contributions to the literature detailing disasters in given areas of Commission respon- sibility, such assertions are almost universally dismissed as exaggera- tions. And so it is that I have come to try to describe the agency one more time, but from a unique perspective: "A day in the life" of the Federal Communications Commission.2 The day-Wednesday, De- 0 Commissioner, Federal Communications Commission, 1966-1973; B.A., 1956; LL.B., 1958, University of Texas. 10 A.B., Brown University, 1968; J.D., Yale Law School, 1971. Legal Assistant to Commissioner Johnson, 1972-1973. This article reflects the opinion and experience of one FCC Commissioner and is written in the first person. It represents the work, however, of many people. Commissioner John- son was assisted in the preparation of the weekly agenda by his permanent office man- ager and economic and legal assistant, Robert S. Thorpe, and by his other legal assistant for the 1972-1973 term, Larry S. Gage, who also assisted the authors in the preparation of this article. The idea of a "dissent" to an entire Commission agenda was initially dis. cussed with Tracy A. 'Westen, the Commissioner's legal assistant for the 1969-1970 term. The authors also thank Mrs. Mary Ann Tsucalas of Commissioner Johnson's staff for editorial assistance and manuscript production. 1. There are many who have bemoaned what may aptly be described as the FCC's analytical void. For example, Newton Minow, a former FCC Chairman, complained upon leaving the Commission that the FCC is "a quixotic world of undefined terms, private pressures and tools unsuited to the work" Drew, Is the FCC Dead? ATLAnc, July 1967, at 29. For a somewhat different view, however, see Cox, Does the FCC Really Do Anything? 11 BROADCSrING 97 (1967). 2. Numerous books, articles, and government reports have been written about the FCC. See H. FRIENDLY, THE FEDERAL ADMINIrRATIVE AcL." ctEs (1962); J. LA.,%Dts, RP.onT oN REGUTATORy AGENCES TO THE PEsIDE'cr-ELEcr, SENATE Comt. ON TiE JUDICIAnY, 86th Cong., 2d Sess. (1960); Drew, supra note 1; Kalven, Broadcasting, Public Policy and the First Amendment, 10 J. LAw & ECON. 15 (1967); Zeidenberg, Is the FCC Obsolete? TssMrx- SION, Oct. 1966, at 27, 51. 1575 The Yale Law Journal Vol. 82: 1575, 1973 cember 13, 1972-was selected from the Commission's meeting days in 1972. It is neither better nor worse than any other day during the past seven years. It is typical. This article is an effort to describe what the FCC did on that typical Wednesday. Professors and students of administrative law tend to concentrate on a particular agency decision-usually one that has gone to the appellate courts. But a look at one day's events may well be more instructive than a close examination of a single event in determin- ing why an agency is failing at its job or why it acts in a consist- ently unprincipled manner.3 The seven FCC Commissioners meet weekly, on Wednesdays, 4 to vote on the items brought to their attention by the Commission's various bureaus.5 It is not clear who decides what matters will be considered. The agenda is the product of industry pressures, staff idiosyncrasies, and political judgments. If he chooses, however, the Chairman is in a position to control the flow of items to the Com- mission. Most matteis are not handled at FCC meetings but are delegated .by the Cor'mission to the staff for action. In theory these items are in areas of settled Commission policy but, in fact, the Commission has not so limited the scope of its delegations. During my term the majority has been unwilling to examine its delegation orders or to enunciate what standards control the delegation of decision-making authority. Those issues which do reach the Commissioners each week often take them by surprise. Opening a new agenda (the stack of mimeo- graphed staff memos and accompanying recommended opinions for a Wednesday meeting) is like Christmas morning. All too often the 3. There arc some shortcomings in this expository device. Considerable background material must be included in order to analyze the Commission's actions. Moreover, al. though one day does include a range of Commission activities, such concentration runs the risk inherent in any evaluation based on a random sample. 4. Most Commission meetings last for a day or less. If several important matters must be resolved, however, the meetings may last as long as two days. The meeting which constitutes the subject matter of this article began on Wednesday, December lITa and ended the following day. These meetings are closed to the public. 5. The FCC has a number of major regulatory responsibilities including regulation of broadcast and cable television (CATV), allocation of the nongovernmental portion of the radio spectrum, regulation of interstate telephone, telegraph, miscellaneous radio common carriers, e.g., land mobile radio users, domestic satellites and international communications services. To deal with these primary areas of concern, the Commission is divided into four substantive bureaus: the Broadcast Bureau, the Cable Bureau, the Safety and Special Radio Services Bureau, and the Common Carrier Bureau. The Chief Engineer's Office and General Counsel's Office are comparable to bureaus. Each bureau, in turn, has various divisions to which I shall refer throughout this article. 1576 A Day in the Life: The Federal Communications Commission agenda includes a long, detailed staff document dealing with a con- troversial and complicated matter in which: (1) numerous alterna- tives are presented (or excluded) after extensive staff work, (2) the proposed resolution is endorsed by all of the Commission's bureau chiefs, (3) an immediate decision is required, and (4) any alteration in the proposed resolution will mean considerably more staff work and costly delay. As a result, rational decision-making suffers. On December 13, 1972, the Commission was presented with fifty- nine items.( In each case the staff made a recommendation to the Commissioners. If a majority votes to approve the staff's recommendation, it adopts the proposed Commission opinion as well. If one of the Commissioners questions a particular item, there is a discussion with the staff prior to a vote. On December 13, twenty-eight of the fifty-nine items were discussed. 7 Each week's agenda is divided into thirteen substantive categories: Hearing, General, Safety and Special, Common Carrier, Personnel, Classified, CATV, Assignment and Transfer, Renewals, Aural, Tele- vision, Broadcast, and Complaints and Compliance-in that order.8 Briefing for Commissioners In recent months the Commissioners have scheduled briefings during regular agenda meetings by each Bureau and Office on its work, resources, and problems. Such briefings often consist of a superficial review of an organizational chart or may deteriorate into a discussion of a pending case. They seldom involve consideration of any inno- vative changes and amount to little more than the Commissioners' collective nod toward fulfillment of their management responsibilities. Measured by past briefings the Cable Bureau's December 13 brief- 6. Fifty-seven of these items had been distributed to each Commissioner's office at the close of the preceding week. Two, however, did not reach the Commissioners until just prior to the meeting. These latter items are called "walk-in items," and because they are rushed to the Commission for resolution, the Commission's analysis is often extremely superficial. 7. Twenty-four of the remaining items were adopted without discussion in what is called the "consent agenda." On December 13, the consent agenda lasted one half hour. The remaining seven items were simply passed over for future consideration. Of the twenty-eight items which the Commissioners discussed eleven were deferred for future resolution. 8. There is a final category of agenda materials which can be called information items. Some are copies of previous agenda items which were acted upon before a regular distribution of materials could be completed. Others are matters acted upon by circulation: The item is passed from one Commissioner's office to the next for the recording of votes. Some are staff memos (or occasionally Commissioner memos) that contain important information-among them staff papers on major policy proceedings underway at the Commission, reports on meetings attended by staff, or reports on work underway in the Commission. 1577 The Yale Law Journal Vol. 82: 1575, 197'3 ing was excellent. It focused on the growth and geographic distribution of the CATV industry, developments in the industry's owner- ship structure, bureau backlog problems,9 reports filed with the Commission but as yet unprocessed, and bureau organization. The Cable Bureau's Chief noted, "The trouble we are in now will only deepen." Backlogs were growing, the toughest certification cases were yet to come, and time lost due to inadequate staff could not be recouped. The Commissioners were advised that there was no staff to process and analyze the annual reports from CATV systems.10 The discussion turned to mergers within the Cable industry. The Cable Bureau saw no harmful effects from growing concentration of control within the industry"1 and attempted to rationalize recent mergers by analogy to companies in other communications indus- tries which serve more subscribers than the largest cable corporation.

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