The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.
The Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures. However, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ). The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. The order allows the Commission or the presiding officer in a case to direct that a hearing be conducted through written testimony rather than trial-type procedures when appropriate. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in _Mathews v. Eldridge_, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.
The debate about the breadth of procedural due process protections in formal and informal adjudication is one of the areas of disputation key to understanding the administrative state. While some scholars argue that formal adjudication’s trial-type hearings are necessary to satisfy due process, others claim that the written testimony provided during informal adjudication is sufficient.
