What the Advocate’s Playbook Reveals About FCC Institutional Tendencies in an Innovation Age

Abstract

Politicians and regulators emphasize that policy which facilitates innovation in information communications technology (“ICT”) is an imperative for national competitiveness and economic health in the 21st Century. The Federal Communications Commission (“FCC”) has primary jurisdiction over telecommunications in the United States and its policy-making has important consequences for ICT. This paper explains why the FCC’s formal processes, informal norms, and resource capacity – collectively described in this paper as the FCC’sprocedural architecture – are in tension with oft-stated innovation oriented objectives. Despite its substantive goal to promote innovation, FCC processes pose particular problems for new entrants and emerging companies which impedes innovation.

Advocacy strategies engendered by the FCC’s procedural architecture reveal important institutional tendencies. Notably, architecture is not value agnostic: it invites certain developmental paths in policy-making while frustrating others. Examination reveals institutional values which favor fairness over economically efficient change, even where process imposes costs which disproportionately affect parties with limited resources. In view of this, despite laudable intentions as a regulatory policy objective, the elevation of innovation as a policy goal alone – absent attendant changes to procedural architecture – is unlikely to regularly facilitate timely policy-making amenable to telecommunications innovation.