Art's recent post about conditions on the AT&T-BellSouth merger, and the possible issuance of an Notice of Inquiry on network neutrality, underscore the state of the FCC's policymaking apparatus. It is not pretty.
The FCC, rather than develop a rule-of-law culture steeped in intellectually rigorous and tractable principles, is riddled with a legislative-like give-and-take legacy of dealmaking, rent-seeking pressures, and industrial policymaking (i.e., picking and choosing winners or handicapping the race). Such a legacy leads many to ask, including one commenter on my net neutrality post, “can we trust the FCC with any substantial policymaking responsibility?” This criticism, by the way, is one of the most powerful reasons behind the critique of the Broadcast Flag–the agency is not to be trusted as a reasonable arbiter of DRM given its traditional sensitivity to political pressures.
The question for the FCC of the future is whether it will develop capabilities to adjudicate competition policy matters (as in net neutrality), define and enforce property-like rights in spectrum, and protect public values in an intellectually honest fashion (say, seeking to evaluate the best strategies for promoting media diversity). To date, I have not paid as much attention to such questions as I should–for an exception, see the second half of this piece–but going forward, the question of what type of FCC should exist may well be far more important than the substantive questions of whether the agency should pursue X or Y policy.