Too Much Power, Too Little Restraint: How the FCC Expands Its Reach Through Unenforceable and Unwieldy “Voluntary” Agreements

The character of a regulatory agency is most severely tested at the zenith of its power. When the Federal Communications Commission ("FCC" or "Commission") breaks free of the limitations imposed by the law, the Commission’s leadership sets its own course. It is at these times, when legal oversight is at a minimum, that it becomes most important for the agency to "pay more attention to justice." Unfortunately, as outlined in this Article, the FCC has often failed this test of institutional character. In at least three contexts, the Commission has proven to be something less than a benevolent master.

In each context, the current Commission leadership uses the vulnerability of licensees and the absence of legal oversight to advance its particular public policy agenda; impose many requirements it cannot or will not enforce; and facilitate the creation of vast company-specific regulatory regimes that undermine transparency and predictability.