While only one administrative law judge remains at the U.S. Federal Communications Commission, down from over a dozen in the 1970s, a recent Supreme Court decision has renewed discussion about whether the FCC's administrative law office should be closed.

The agency's administrative law judge, or ALJ, is empowered to hold hearings in disputes such as carriage complaints or merger reviews, during which documents and sworn testimony are received in evidence and witnesses are cross-examined. While FCC bureaus can conduct the equivalent of hearings via paper filings and its commissioners have the ultimate say on any ruling, the ALJ position is meant to ensure fairness and due process.

The U.S. Supreme Court's June decision in Lucia v. Securities and Exchange Commission called into question the constitutionality of ALJ appointments across as many as 25 federal agencies. The court ruled ALJs are "officers of the United States" and therefore must be appointed by the president, the courts or a department head, though a number of federal agencies have not historically done this. FCC spokesman Will Wiquist said the agency's ALJ "is appointed by the full commission and thus [is] in compliance with the ruling."

However, following the decision, Republican FCC Commissioner Michael O'Rielly said in a tweet that the case represented "an additional reason – among many – @FCC should dump Administrative Law Judge process." Over the last year, O'Rielly has repeatedly called for a reduction or outright elimination of the FCC's ALJ office.

Paul Werner, a partner at the law firm Sheppard Mullin Richter & Hampton LLP, said the FCC has been moving away from ALJ hearings.

"Adjudications before the FCC have waned over the years," Werner said in an interview, attributing the shift to both "broader FCC regulatory policies and prerogatives, and the current state of the communications sector." The FCC had 14 ALJs in 1977, according to a report from the U.S. Government Accountability Office.

One of O'Rielly's key complaints about the administrative law hearing process is the amount of time it can take. In April, he noted that the prehearing process in a dispute over the transfer of a radio station license took three years. In 2017, he pointed to a carriage dispute that lingered in the process for nearly six years. "That is not acceptable under any circumstances," O'Rielly said after the FCC overturned an ALJ decision in the carriage dispute between GSN (US) and Cablevision Systems Corp.

Bob Atkinson, director of policy research at Columbia University's Columbia Institute for Tele-Information, said the ALJ process can and should be more efficient than paper hearings when used properly. Atkinson, who previously served as the deputy chief of the FCC's Common Carrier Bureau, noted that during ALJ hearings, the two different sides of a matter come together "in a court-like atmosphere, swear to tell the truth" and not only make their own case but then also respond to each other's points.

"That's how you get to the truth," Atkinson said, adding that when it comes to due process, "I think that is the kind of process the Constitution envisioned for dispute resolution by the U.S. government."

Asked about O'Rielly's criticisms of the ALJ process, Atkinson said, "The problem I see is that the ALJ hasn't been used enough. So it's difficult to assess whether ALJ is effective or not because they are rarely if ever used."

FCC Chairman Ajit Pai has not publicly commented on the ALJ process. When the question came up at a 2017 open meeting following the commission's GSN and Cablevision decision, Pai said he keeps an "open mind" any time one of his colleagues has an idea for reform.