Policy Documents

Improving FCC Process

Randolph J. May –
July 11, 2013

This document is a testimony by Randolph May.  He argues that the FCC still operates today with a pro-regulatory bent pretty much as it did in 1999 when FCC Chairman William Kennard called for the reorientation of the agency's mission to account for the increasingly competitive environment evident even then. The reforms in the draft bills, along with a few additional proposals I will suggest, would make the FCC less likely to default so often to regulatory measures, even absent clear and convincing evidence of market failure or consumer harm. In today's marketplace environment, the default position should not be regulation.

Over time, the agency increasingly has abused the merger review process by delaying approval of transactions until the applicants "voluntarily" agree -- usually at the "midnight hour" -- to conditions not narrowly tailored to remedy a harm arising from the transaction or unique to it. 

May suggests that the Committee reform the forbearance and periodic regulatory review process by, in effect, requiring a higher evidentiary burden to maintain existing regulations on the books. Absent clear and convincing evidence that the regulations at issue should be retained under the existing substantive statutory criteria, regulatory relief should be granted. Similarly, I propose adoption of a "sunset" requirement so that all rules will automatically expire after five [or X] years absent a showing, based on clear and convincing evidence, that it is necessary for such rule to remain in effect to accomplish its original objective.