The Public Interest Standard—Is It Too Broad To Be Constitutional?

  • Randolph J. May

Abstract

More than three hundred years ago, in the second of his famous Two Treatises, John Locke wrote that the legislature “cannot transfer the [p]ower of [m]aking [l]aws to any other hands. For it being but a delegated [p]ower from the [p]eople, they, who have it, cannot pass it over to others.”

Keywords

Depression Benzene Petroleum Transportation Ozone 

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References

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    See, e.g., Ameritech Corp. & SBC Comm. Inc., for Consent to Transfer Licenses and Lines, Memorandum Opinion and Order, 14 F.C.C.R. 14,712, paras. 46–54, 18 Comm. Reg. (P & F) 1 (1999) [hereinafter Ameritech Corp. & SBC Comm. Inc.], (imposing thirty separate regulatory conditions under its public interest authority, many of which had nothing to do with the particular issues raised by the license transfer application). For example, the condition requiring that the merged entity provide a certain percentage of advanced services to lowincome neighborhoods involves the type of policy issue that should be considered in a generic rulemaking proceeding. If a mandate to serve certain areas differentially makes sense as sound policy, then it should be applicable to all similarly situated local exchange companies, not just those that happen to file license transfer applications. The same is true for the condition applied uniquely to the merged company, under which it must establish a separate subsidiary for providing certain data services. Other similarly situated local exchange companies have been exempted from establishing such subsidiaries. For other recent mergers in which the FCC has imposed unique conditions on the merger applicants, see Applications of WorldCom, Inc. and MCI Comms. Corp. for Transfer of Control of MCI Comms. Corp. to WorldCom, Inc., Memorandum Opinion and Order, 13 F.C.C.R. 18,025 paras. 7–14, 13 Comm. Reg. (P & F) 477 (1998); Applications of NYNEX Corp., Transferor, and Bell Atl. Corp., Transferee, for Consent to Transfer Control of NYNEX Corp. and its Subsidiaries, Memorandum Opinion and Order, 12 F.C.C.R. 19,985 paras. 27–36, 9 Comm. Reg. (P & F) 187 (1997).Google Scholar
  132. 134.
    FCC v. Pottsville Broad. Co., 309 U.S. 134, 142 (1940); see supra 309 U.S. 134, 137 (1940), 309 U.S. (1940) at 138, 309 U.S. (1940) at 142 and accompanying text.Google Scholar
  133. 135.
    Pottsville Broad. Co., 309 U.S. at 138.Google Scholar
  134. 136.
    Pottsville Broad. Co., 309 U.S. at 138.Google Scholar
  135. 137.
    See, e.g., Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations, Notice of Inquiry and Proposed Rulemaking, 77 FCC.2d 308 (1979); First Report and Order, 85 FCC.2d 1, 52 Rad. Reg.2d (P & F) 215 (1980); Further Notice of Proposed Rulemaking, 84 FCC.2d 445 (1981); Second Report and Order, 91 FCC.2d 59, 52 Rad. Reg.2d (P & F) 187 (1982); Further Notice of Proposed Rulemaking, 47 Feds. Reg. 17,308 (1982) (“Competitive Carrier Proceeding”). See also Amendment of Section 64.702 of the Comm’ns Rules and Regulations (Second Computer Inquiry), Final Decision, 77 FCC.2d 384, 44 Rad. Reg.2d (P & F) 669 (1980); Memorandum Opinion and Order, 84 FCC.2d 50, 48 Rad. Reg.2d (P & F) 1107 (1980); Memorandum Opinion and Order on Further Reconsideration, 88 FCC.2d 512, 50 Rad. Reg.2d (P & F) 629 (1981); Computer and Comms. Indus. Ass’n v. FCC, 693 F.2d 198 (D.C. Cir. 1982); La. Pub. Serv. Comm’n v. FCC, 461 U.S. 938 (1983) (“Computer II” proceeding).Google Scholar
  136. 138.
    Under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1994), the agency’s decisions must not be “arbitrary and capricious,” and the agency must provide a reasoned basis when it departs from prior agency precedent. Motor Vehicle Mfrs. Ass’n v. State Farm Auto. Ins. Co., 463 U.S. 29 (1983). These constraints do help ensure reasoned decisiomaking, and they are important, but they do not prevent the agency from changing its mind in the exercise of delegated lawmaking authority. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). At issue here is not the rationality of the agency’s decisions under the public interest delegation, but the very lawfulness of the delegation itself.Google Scholar
  137. 139.
    In response to the argument here, at least with respect to regulation of the mass media, one may contend that sensitivity to First Amendment concerns dictates that Congress need not be more specific in its delegation. In other words, some argue that it would be inappropriate, consistent with the First Amendment, for Congress to set forth more specific guidance concerning the types of programming the agency should mandate. Apart from the dubious reasoning of Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969), at the time it was decided, in today’s environment (and putting aside certain well-recognized exceptions), the First Amendment likely precludes either Congress or the Commission from adopting requirements that affect program content for any electronic media. The completely indeterminate nature of the public interest delegation, however, raises separate constitutional concerns.Google Scholar

Copyright information

© Springer Science+Business Media New York 2001

Authors and Affiliations

  • Randolph J. May
    • 1
  1. 1.The Progress & Freedom FoundationUSA

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