New Publication: Case Studies in Abandoned Empiricism and the Lack of Peer Review at the Federal Communications Commission

The Journal on Telecommunications and High Technology Law at the University of Colorado law school has published my article that provides ample evidence to prove that the FCC rarely does an adequate job at fact finding when making decisions having substantial impact on our national economy; see http://jthtl.org/content/articles/V8I2/JTHTLv8i2_Frieden.PDF.

I examine six case studies where the Commission deregulates, approves a merger, and relaxes ownership and spectrum restrictions. In each instance the FCC makes expansive claims how the proposed transaction or shift in policy will promote competition, serve the public interest and enhance consumer welfare. The Commission makes these claims based often exclusively on the filings of stakeholders in lieu of internal fact finding and analysis. Often reviewing courts refrain from questioning the FCC’s findings and rejecting the Commission’s lack of empirical analysis subject to statutorily required peer review.

I offer recommendations for an improved process at the FCC. However, no one should expect progress unless and until reviewing courts do a better job of requiring a match between a policy outcome and the evidence supporting it.