“Our government can’t understand basic facts when strong interests have an interest in its misunderstanding.”
-Lawrence LessigWhich means my professor is maybe not so right. Last week we had a guest speaker in our Communications Law class, senior legal counsel to one of the main commissioners at the FCC. We discussed the differing roles of Congress, The Courts, and The FCC, in determining public policy of communications. We went over how each arm functions, how jurisdiction is determined, and the idiosyncracies of each branch, which are concentrated by far within that strange child of congress, the FCC. My professor, an established attorney with years of experience on the hill and in the private communications sector, went on to place all three factions on a continuum of consistency. He established that the courts were the most concerned with strictly reading the law, and least likely to inject other concerns into its decisions. Next came the FCC, which is more prone to personal inflection from the commissioners due to the public interest provision established in the Communications Act and because officials are appointed, not elected. Congress is of course, the last on the list, and the most vulnerable to persuasion by constituents.Someone raised their hand (okay fine, it was me), and asked about the persuasion of lobbying power. Our professor went on to explain how the FCC is not vulnerable to lobby power. And apparently, congress isn’t really either.He described the FCCs official process, which requires that all meetings and proceedings are painstakingly documented, forming endless reams of paperwork which are heavily scrutinized by the courts if ever a case is brought. Because of these strict regulations, the FCC is very much on the up and up about its decision making process, and anything that might appear questionable on the permanent, public record. The very next day in my Telecom Newsbreak email, I received this (free registration required), an article about the recent GAO Report that details how the FCC routinely leaks information to interested parties before it is publicly announced. So much for faith in a transparent, self healing system.
The theoretical continuum is a useful rubric. But that just makes me wonder what Congress is up to. Although there may be a great deal of documentation at the FCC, their processes really aren’t that regimented. There is plenty of room both within and clearly, outside of the written record, for stakeholders to their influence.One of the many facts our government refuses to understand is the need for a media that actually does serve the public interest, beyond lip service used to hold onto a broadcast license. Or the need for a process that allows the citizenry to determine what that interest is, rather than treating us like we’re all crazy cat ladies who couldn’t possibly play an active role in determining what is valuable information. — Exercise
Thanks to Jessica Vitak for emailing about Lessig’s relatively recent change of professional course, which led me to his take on this issue, and gave me the impulse to gripe some more about the FCC.Here is another interesting story about not taking AT&T and Verizon to charge for their alleged release of private information to the NSA.