75th Anniversary of the FCC

fccToday marks the 75th anniversary of the Communications Act of 1934. For most of its existence, the Communications Act provided much of the essential regulatory structure for the telecommunications (in Title II of the Act) and broadcast (in Title III) industries. The former provided some of the basis for my own practice back in the 1990s as an associate at a large Chicago law firm, one of whose primary clients was American Telephone & Telegraph Co. (or “AT&T,” as at one point it was formally renamed).

Of considerably broader importance, the Communications Act created the Federal Communications Commission (FCC), which has had an extraordinary effect over the decades on the American economy and society. Not so long ago there were calls to abolish the FCC, but they have not achieved success.

This is not to suggest that the FCC is riding high in all respects. 

The FCC’s rulings are, of course, frequently challenged in court. I have a recollection of a brief that derided the FCC’s approach to some issue (a refusal to rule on a particular matter, I believe) as analogous to what Lewis Carroll set forth in Through the Looking Glass:

“The rule is, jam to-morrow and jam yesterday — but never jam to-day.”
“It MUST come sometimes to ‘jam to-day,'” Alice objected.
“No, it can’t,” said the Queen. “It’s jam every OTHER day: to-day isn’t any OTHER day, you know.”

As I recall the matter, counsel for the FCC made the mistake of lamenting in oral argument before the D.C. Circuit that surely the court was tired of reading in briefs references to Alice in Wonderland and the like. One judge leaned forward and said something along the lines of, “You know, we only read them in cases involving the FCC.”

In any event, whatever its recent track record of success before the D.C. Circuit, the FCC plugs along. Time will tell whether it will surpass in longevity its progenitor, the Interstate Commerce Commission. The ICC endured from 1887 to 1995. I am tempted to say that that is another story; but in certain key respects it is the same story, and aspects of it are told here.

Joseph D. Kearney

Joseph D. Kearney has served as dean and professor of law at Marquette University Law School since 2003. He joined the faculty in 1997.

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