At a PLI workshop on cable regulation yesterday, I made the comment that I was discouraged that the new "data-driven" FCC has, if anything, expanded the use of public hearings in its rulemaking process. Expert agencies, I pointed out, should be about substance and not show - if we really want to turn the important questions that the FCC has to deal with into political questions, we should at least have them decided by Congress directly - a body that does have to answer to the voters - rather than by a group of unelected bureaucrats.
That is not to say that there is anything wrong with going outside of Washington to seek input from others who might actually have something important to say about particular issues. To the contrary, upon reflection, one probably could go beyond the Beltway and hold public hearings that would actually be useful in developing substantive policies. The focus would necessarily be on getting actual experts in engineering, economics, law, and business to educate regulators about the implications of given policy choices.
The problem is that the FCC typically has not run its public hearings in a way that is so focused on substance. Instead, the FCC hearings are set up as if they are holding a popular referendum on the policy in question. I have the highest regard for the American public, but the fact is that the issues the FCC has to deal with are highly technical, subject to arcane legal standards, and involve layers of services that are mostly invisible to the average user. Indeed, even for those of us who have worked in these areas for many years, the issues confronting the FCC often challenge our understanding of the services and technologies the in question. In short, these are not questions appropriate for popular referenda.
As I also said at the PLI conference, I am cautiously optimistic that this FCC will get away from policy-making based on ideological bias and back to a more serious and professional approach to its statutory duties. I can only hope that this change will be reflected in the way it conducts any future field hearings that it conducts.