The FCC and Quasi-Common Carriage

The Federal Communications Commission (FCC) has been called “the paradigmatic New Deal agency,”  created in 1934 with broad authority to regulate a general area of the economy and “largely staffed with reformers eager to expose and correct the misdeeds of corporate institutions and executives.” Its charge was to regulate the common-carrier telegraph, telephone operators, and the nascent broadcast radio industry as public utilities. To that end, Congress created the FCC to “make available, so far as possible, to all the people of the United States . . . a rapid, efficient, Nation-wide, and worldwide wire and radio communication service with adequate facilities at reasonable charges.” This broad grant of jurisdiction allowed agency goals to shift markedly and expansively into adjacent markets. Major regulatory interventions into mass media, such as broadcast media ownership rules, investigation into newspaperbroadcast cross-ownership, the Fairness Doctrine,  and cable TV regulation, were not expressly authorized in the 1934 Act. 

We posit, after reviewing trends in communications law, that the FCC is not going anywhere soon. In this article we identify why, despite competition, falling prices, and expanding output in telecommunications and media, the agency will survive indefinitely and may expand its jurisdiction. We address a prominent theory after the passage of the deregulatory 1996 Telecommunications Act that the FCC would survive simply as a modest economic regulator of “bottlenecks.” While it is still too early to dismiss this theory completely, it failed to foresee some important changes in the FCC’s regulatory philosophy and strategy.