Texas A&M Law Review
J. Brad Bernthal, Procedural Architecture Matters: Innovation Policy at the Federal Communications Commission, 1 Tex. A&M L. Rev. 615 (2014), available at https://scholar.law.colorado.edu/articles/61.
This Article examines the puzzle of whether today's Federal Communications Commission ("FCC" or the "Agency") is institutionally suited to craft telecommunications innovation policy and, if not, what changes are needed to better equip the Agency to respond to twenty-first century realities. Evaluation of FCC innovation policy performance is stubbornly difficult. Some criticize the FCC as a brake on innovation yet, under the FCC's oversight, the United States' communications industry has become an innovative engine propelling the overall economy more than ever before. It is difficult to untangle whether the FCC deserves credit for helping usher in today's communications age, whether the FCC deserves blame for hamstringing innovation, or both. New tools are needed to address this puzzle.
This Article develops such a tool, the procedural architecture analysis. A detail-rich examination of the FCC's procedural architecture-viz., the Agency's formal and informal procedures, resources, and institutional norms-reveals systemic FCC leanings that are in tension with oft-stated innovation objectives. The Article cracks the black box problem, whereby much Agency decision-making is not readily observable, by studying a key yet understudied input: the advocacy of those who practice in front of the FCC. Procedural architecture analysis reveals surprising gaps between administrative process theory's ideals and FCC realities. Moreover, it underscores crucial reforms needed to enable the FCC to act faster, marshal independent expert resources that it conspicuously lacks, and broadly fulfill its twenty-first century imperative to facilitate telecommunications innovation.
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