Commissioner O’Rielly’s crusade for FCC process reform

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[Commentary] Following the harsh spotlight that the network neutrality proceeding placed on the Federal Communications Commission’s operations, there has been renewed interest in the topic of FCC process reform. Perhaps none have taken more interest in this topic than FCC Commissioner Mike O’Rielly, who has penned several blog posts in recent months challenging the commission to change “business as usual” in specific ways. But what does “process reform” mean in practice?

While various groups talk about “FCC process reform,” it quickly becomes clear that they do not all mean the same thing. The 2014 staff report focused largely on ministerial tasks, such as reducing paperwork and improving coordination among the agency’s various bureaus. By comparison, Commissioner O’Rielly has focused on creating systemic change in the way the commissioners of the FCC make decisions. Most law today occurs not in the legislature, but in agencies like the FCC pursuant to power delegated by Congress. The Administrative Procedure Act long ago recognized that process is the lynchpin that allows delegated authority to be exercised by unelected agency officials. It assures Congress and the public that the agency will make an informed decision after carefully considering the views of affected stakeholders. FCC process reform is needed in order to facilitate public insight and transparency, and to improve the overall quality of its final product. Process reform should promote a better, more robust dialogue among the commissioners, and between the commissioners and the public. The commission ignores such reforms at its peril, as it jeopardizes the legitimacy of the agency’s final product.

[Daniel Lyons is an associate professor at Boston College Law School]


Commissioner O’Rielly’s crusade for FCC process reform