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Weekly UpdatesIt is fascinating to reread the "Vast Wasteland" speech--Newt Minow's first major policy utterance as the "new frontiersman" assumed the helm at the Federal Communications Commission ("FCC" or "Commission") over forty years ago. There are all sorts of themes from the speech to write about: how remarkable it is that a talk delivered in 1961 by an FCC Chairman should be recalled forty years later, let alone written about; the limited space it in fact devoted to the "vast wasteland" theme; and its cultural congruence with the Kennedy embrace of change in, and challenge to, the existing order that toppled segregation, launched the environmental movement, ultimately inspired the antiwar agitation, and revolutionized dress, music, morals, and culture generally. (Newt Minow may have had more in common with John Lennon than he realized.) Of course, this era followed after the comfortable (for most) conformism of Ike and the post-World War II era. I was tempted to write about these other topics but decided to discuss what the speech did not address but assumed--the framework of administrative law on which it was premised and which has become so radically undermined in the ensuing decades.
What I was about to learn about administrative law was to be taught to me by the redoubtable Professor Alex Bickel at Yale Law School. My early experience practicing before the FCC a couple of years later confirmed the administrative law principles that I had been taught. There were bad decisions, to be sure, but there was a common understanding of how administrative agencies were supposed to work, and one could evaluate their performance (in fact the performance of all three parts of the process--Congress and the courts, as well as the FCC) against this common set of well-understood and, for the most part, well-accepted principles.
Back then the conventional wisdom was that Congress enacted broad principles and policy objectives; the agency used its expertise to flesh them out in roughly equal measure via specific rulemakings and adjudications; and the courts deferred to the agency's implementation of these principles and policy objectives, unless the agency's decisions were adopted pursuant to faulty procedures or were clearly wrong. Since then, a strong case can be made that all three branches of government have deviated substantially from their historic and intended roles and that this is as important a change from the era of the wasteland speech as any of the topics it specifically addressed.
CONGRESS
Both formally (in legislation) and increasingly informally (through letters, meetings between staffs, and phone calls), Congress is taking positions on very narrow communications issues which, under old administrative law concepts, it should leave to the decision-making of the expert agency, subject, of course, to Congress's general oversight. This has spawned the quite remarkable countertrend of the FCC leaving certain decisions to Congress. A case in point is the FCC's long reluctance to take the steps necessary to implement the digital television transition, despite direction from Congress in 1992 and 1996, and its relegation to Congress to undertake the task of implementation. And because it understandably lacks expertise as to the details, Congress can be less than clear in these circumstances. Thus, the Telecommunications Act of 1996 generated the rather odd outcome of two sets of Congressmen litigating in court against each other over the meaning of the same provisions--provisions that they themselves had enacted. (1) This anecdote suggests that Congress tried to go too far into the details and, as a result, passed a confusing statute, whereas Congress should have adopted broad principles and left the specifics to the FCC.
Further evidencing a weakening confidence in the administrative agency process, Congress has also burdened the FCC with all sorts of procedural requirements: analysis of the impact of its actions on small businesses; the Regulatory Flexibility Act; (2) analysis of the time required by private entities to comply with FCC requirements; clearance of new FCC forms by the Office of Management and Budget; and the Sunshine Act, which bars more than two commissioners from conferring privately on issues. The latest congressionally imposed mechanism for policing the agency is the Biennial Review process, which a three-judge panel recently described in oral arguments as "absurd," "ridiculous," and "lacking in sense." (3) Many, including Commission personnel, moan about the FCC's reversal record in court, but some responsibility may lie with Congress and, as we shall see, with the courts themselves.
THE COURTS
Recent court decisions reviewing FCC actions reflect a mood toward the agency process that might be described as sour. Even when not stated expressly, a fair reading of various court opinions reveals frustration, disillusionment, and confusion over how the administrative process is working. Although the criticism is most often directed at the hapless agency, Congress, as noted above, is sometimes its target. As with Congress, there is a sense that the courts have lost confidence in the process; the concept of the agency's partnering with the other two branches of the government (the FCC and Congress) to make the system succeed is recognized in the breach.
Substantively, the courts' interpretations of the First Amendment and the Takings Clause (4) of the Constitution have radically changed the legal environment in which the FCC operates. The FCC's freedom of action is substantially cramped by these doctrines, which are far more constraining than they were forty years ago. The "Vast Wasteland" speech unselfconsciously, unashamedly, and without fear of the First Amendment or other judicially enforced constraints assumes that the FCC can and should oversee and regulate the quality of broadcasters' programming. It is in this respect, more than any other, that the speech seems outdated.
THE FEDERAL COMMUNICATIONS COMMISSION
It is hard not to have sympathy for the challenges that the FCC faces today. In addition to the inevitable dulling of the original mandate of the FCC over the past forty years (there is no dulling in Minow's speech), there are trends outside the FCC's control, some already noted, that have made its job far more difficult. The rapidity and radical consequences of technological change, the expanding breadth of its jurisdiction, the complexity of the issues, the sheer size and importance of the industries it affects--all these pose enormous challenges for the FCC. The world of the "Vast Wasteland" speech was far simpler.
Some of the FCC's critics, noting these challenges and the shortcomings of the administrative process, call for the FCC's substantial overhaul. It has lived through the Clinton-Gore Administration reinventing government and the Republican-driven FCC restructuring of 2001. Neither has had discernible impact on the success of the Commission or on how it operates. Other, more radical, restructuring proposals have surfaced from time to time, but they have promised too much, blinked realities, and/or ignored the practical problems of implementation. Even the demise of the FCC is urged by some--at a time when the rest of the world, moving toward privatization of its communications industries in order to emulate the United States's successes, seeks to understand how to establish an independent agency (like the FCC) to referee the disputes that their newly privatized environment inevitably will generate.
But let us turn back to trends within the FCC's administration of its mandate that illustrate how things have changed in forty years and why the administrative/legislative process that regulates the communications industries is in trouble.
A SLAVISH DEVOTION TO RULEMAKING AND BRIGHT-LINE TESTS
Justice Holmes said that law is the "triumph of experience over logic." (5) But over the past four decades, the FCC has relied increasingly on rulemaking and bright-line tests and has drastically cut back on hearings and case-by-case determinations. In this agency, at least, a civil law philosophy has come to control rather than the common law approach. This trend may have contributed to the agency's diminished credibility. Its claim to expertise, which should help ward off invasion into specific areas by Congress and should entitle it to judicial deference, was, in Professor Bickel's day, to be based in part on its experience in dealing with specific cases. By relying so exclusively on rules, the Commission has deprived itself of this experience. Newt Minow's speech exhibits no presumption that the FCC will adopt across-the-board rules to deal with poor programming, the television community's reliance on ratings, and children's programming--three of the topics he singled out in 1961. (6)
Interestingly, the Powell administration has embarked on a few modest steps toward more case-by-case determinations. Its greater emphasis on enforcement actions, which are fact-specific, is a case in point. Another is the FCC's willingness to consider in its omnibus multiple-ownership rulemaking a system of presumptive, rather than determinative, guidelines that could be rebutted by showings based on particular circumstances in individual cases. An additional example of a common law approach to regulation is political broadcasting. The statute, particularly the lowest-unit-charge principle, (7) may be vague and flexible, but desirably so. Implementing that law, the Commission staff has come to know the broadcast and cable advertising industry and, through its handling of complaints, keeps up with new developments. It has developed expertise of the sort that lay at the heart of traditional administrative law forty years ago. The FCC's political-broadcast decisions may not always be right, but they are informed and fact-specific, and by and large a very complex area of law is well understood by those it affects: candidates, agencies, and stations alike. (By contrast, the congressional debates on this subject are, to be candid, ignorant and ill-informed.) The body of law that has developed is at least as clear as rules adopted by the Commission in other regulatory areas, and far more supple and adaptable.
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