Congress, the FCC, and the Search for the Public Trustee

Abstract

Welcome to the constitutional backwater-a place where Rupert Murdoch and Ted Kennedy battle over the Senator's weight and the press baron's ownership of the Boston Herald; where Supreme Court nominee Clarence Thomas's truthfulness before the Senate Judiciary Committee is challenged by a D.C. Circuit insider; where a regulatory agency hopes its constitutional arguments will be rejected in court and respected in Congress; where President Ronald Reagan alternatively abides by and disregards Department of Justice constitutional interpretations; where President George Bush's regulatory appointees and Solicitor General openly battle each other before the Supreme Court; and where members of Congress perceive constitutional analysis as superfluous. Welcome to the world of the Federal Communications Commission (FCC) circa 1982-1992. The story begins with the 1980 election of Ronald Reagan. Advocating the substitution of marketplace efficiencies for bureaucratic failures,1 Reagan appointed communications free-marketeers Mark Fowler (1981-1987) and Dennis Patrick (1987-1989) to chair the FCC. This changing of the guard, to no one's surprise, did not sit well with the FCC's pro-regulation oversight committees in the Congress, particularly in the House.2 What is surprising is the vehemence in which congressional leadership expressed its displeasure with the FCC, and the