A member of the Federal Communications Commission yesterday sharply criticized his own agency for abdicating its regulatory responsibilities, permitting the courts to step in to fill the void.
"Some of the judges on the Court of Appeals are increasingly acting as though that court were a super-FCC," Commissioner Tyrone Brown complained in a speech to the Federal Communications Bar Association.
But he laid blame squarely on the FCC itself. The courts, expecially the Court of Appeals for the District of Columbia, has "taken over" the role Congress assigned to the "so-called expert independent agency" because "all too often the FCC does not in fact act as an expert and independent agency," he said.
Especially in the granting of broadcast licenses, Brown said, the FCC suffers from a "promise versus performance gap" and an inability to apply its regulatory principles consistently: "we say one thing and do another."
As one example, Brown cited the agency's 1965 policy statement detailing the "high-sounding" principles the agency would apply in comparative license hearings. The agency repeatedly managed to downplay or ignore the 1965 criteria, Brown charged. "In fact, the FCC has yet to take away a broadcast license based on those criteria."
He also brought up the FCC's policy to limit concentration of ownership in the broadcasting industry. Aside from limiting a single service's ownership to seven AM radio, seven FM radio, and seven TV stations. Brown said, "I know of no FCC multiple ownership policy which has been strictly enforced. Instead, what we have are exceptions, notes to exceptions and loop-holes to notes.
"It is this inconsistency which has permitted the court of appeals to reverse our decisions, which has created growing disrespect for the commission's judgments, and which has encouraged some judges to attempt to supplant the commission in making communications policy," he said.
Brown, the newest member of the FCC, cited 11 major cases reversed by the court of appeals in the last year and a half. Although he said he agreed with the "thrust" of many of the court's decisions, he said the court cannot create a positive communications policy "by veto."
Brown said he believed the solution to the problem was simple to state though perhaps difficult to implement. "What we need to do is to make our general statements of policy consistent with the actions we actually take in individual cases," he said.