Institutional design, FCC reform, and the hidden side of the administrative state

Administrative Law Review

Volumn 61, Issue 4, 2009, Pages 675-721

  Weiser, Philip J ^a  

^a US Department of Justice   (United States)

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EID: 79955707862     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (237)

1. Newton N. Minow, Suggestions for Improvement of the Administrative Process, 15 ADMIN. L. REV. 146, 153 (1963).
2. Cass R. Sunstein, Is Tobacco a Drug? Administrative Agencies as Common Law Courts, 47 DUKE L. J. 1013, 1068 (1998). For a discussion of the turn from courts to agencies as the primary driver of legal policy decisions (Pubitemid 128402906)
3. see Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N. Y. U. L. REV. 1692, 1716-26 (2001).
4. Unfortunately, the complaint of law professor and former Federal Communications Commission (FCC) Commissioner Nick Johnson lodged over a quarter century ago still holds: "Rather than seeking methods for improving the administrative process to avoid unsound, unfair, and arbitrary decisions, scholars have focused almost exclusively on the role of the courts in supervising and reviewing agency action. " Nicholas Johnson, The Second Half of Jurisprudence: The Study of Administrative Decisionmaking, 23 STAN. L. REV. 173, 174 (1970)
5. (reviewing KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969)).
6. See, e.g., Kenneth Culp Davis, Institutional Administrative Decisions, 48 COLUM. L. REV. 173 (1948) (examining the strengths and weaknesses of agency adjudication processes);
7. A. H. Feller, Prospectus for the Further Study of Federal Administrative Law, 47 YALE L. J. 647 (1938) (arguing that, between mere hostility to, defense of, and general misunderstanding of the administrative system, scholars must make serious attempts to understand the justifications for the administrative state).
8. Letter from John D. Dingell, Chairman, House Comm. on Energy and Commerce, to Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n (Dec. 3, 2007), http://energycommerce.house.gov/Press-110/110-ltr.120307.FCC.Martin. transparency.pdf ("Given several events and proceedings over the past year, I am rapidly losing confidence that the Commission has been conducting its affairs in an appropriate manner.");
9. Ted Hearn, Watching the Martin Watch, MULTICHANNEL NEWS, Jan. 21, 2008, http://www.multichannel.com/article/CA6524092.html (calling on the Senate to evaluate the '"structure of the agency, its mission, the terms of the commissioners, and how to make the agency a better regulator, advocate for consumers, and a better resource for Congress.'" (quoting Sen. Rockefeller)).
10. See MAJORITY STAFF, HOUSE COMM. ON ENERGY AND COMMERCE, 110TH CONG., DECEPTION AND DISTRUST: THE FEDERAL COMMUNICATIONS COMMISSION UNDER CHAIRMAN KEVIN J. MARTIN (2008), http://energycommerce.house.gov/images/stories/ Documents/PDF/Newsroom/fcc%20majority%20staff%20report%20081209.pdf [hereinafter DECEPTION AND DISTRUST] (finding that the FCC suffers from significant transparency and management issues).
11. Lawrence Lessig, Reboot the FCC, NEWSWEEK. COM, Dec. 23, 2008, http://www.newsweek.com/id/176809.
12. John Eggerton, Martin: FCC Doesn't Need Major Reform, BROADCASTING & CABLE, Jan. 15, 2008, http://www.broadcastingcable.com/article/CA6522942.html (quoting Martin as stating that "[i]n general, our processes aren't any different than they were under previous chairmen both Republican and Democrat."). Some longtime agency observers essentially second Martin's judgment, noting that "[t]he FCC needs to reform and it has needed to for 25 years.... Too much is done behind closed doors secretly and it has been that way through Democratic and Republican leadership. "
13. Cecilia Kang, FCC Chairman Abused Power, House Probe Finds, WASH. POST, Dec. 10, 2008, at D1 (quoting Consumer Union's Gene Kimmelman).
14. Glen O. Robinson, Radio Spectrum Regulation: The Administrative Process and the Problems of Institutional Reform, 53 MINN. L. REV. 1179, 1239 (1969).
15. Reed E. Hundt & Gregory L. Rosston, Communications Policy for 2006 and Beyond, 58 FED. COMM. L. J. 1, 31 (2006).
16. In explaining his commitment to a serious evaluation of the Federal Trade Commission's (FTC's) institutional processes (as part of an "FTC at 100" study), Chairman Bill Kovacic explained, The quality of institutional design, institutional infrastructure, and institutional process has a great deal to do with determining the quality of substantive outcomes. The same energy that's dedicated to asking what's the right doctrine or what's the right conceptual framework has to be applied to questions concerning optimal institutional design and operational arrangements.
17. Interview with William E. Kovacic, Chairman, Federal Trade Commission, ANTITRUST SOURCE, Aug. 2008, at 8, http://www.abanet.org/antitrust/at-source/08/ 08/Aug08-KovacicIntrvw8=6f.pdf.
18. See Jim Puzzanghera, Criticism of the FCC's Chairman Is Widely Aired, L. A. TIMES, Dec. 10, 2007, at C1 ("Critics have complained that important issues-such as the 2009 transition to digital television and reforming a fund that subsidizes phone and Internet service for low-income and rural residents-are taking a back seat to bickering."). The often cavalier attitude toward regulation was described and bemoaned by Judge Posner as follows: There has I think been a tendency of recent Administrations, both Republican and Democratic but especially the former, not to take regulation very seriously. This tendency expresses itself in deep cuts in staff and in the appointment of regulatory administrators who are either political hacks or are ideologically opposed to regulation. (I have long thought it troublesome that Alan Greenspan was a follower of Ayn Rand.) This would be fine if zero regulation were the social desideratum, but it is not. The correct approach is to carve down regulation to the optimal level but then finance and staff and enforce the remaining regulatory duties competently and in good faith. Judging by the number of scandals in recent years involving the regulation of health, safety, and the environment, this is not being done. Posting of Richard Posner to Becker-Posner Blog, http://www.becker-posnerblog.com/archives/2008/04/ reregulate-fina.html (Apr. 28, 2008, 12:35 EST).
19. See, e.g., James H. Quello, Comm'r, Fed. Commc'ns Comm'n, Remarks at the John Bayless Broadcast Foundation Annual Banquet (Oct. 30, 1996), http://www.fcc.gov/Speeches/Quello/spjhq608.txt (remarking that the institutional structure of the FCC is often slow to confront emerging challenges).
20. As such, some have questioned the constitutionality of the FCC's statutory mandate. See Randolph J. May, The Public Interest Standard: Is It Too Indeterminate to Be Constitutional?, 53 FED. COMM. L. J. 427, 429-30 (2001) (noting the FCC's broad use of the public interest standard and arguing that the standard is inconsistent with constitutional separation of powers principles).
21. ROBERT A. CARO, THE YEARS OF LYNDON JOHNSON: MEANS OF ASCENT 82-95 (1990).
22. See Petition of Lehigh Coop. Farmers, Inc., 10 F. C. C.2d 315 (1967) (selecting best applicant for a radio license based indirectly on value of relevant occupations).
23. THOMAS K. MCCRAW, PROPHETS OF REGULATION 286 (1984). For many years, the FCC attempted to justify its use of comparative hearings as to who received a broadcast license as a principled enterprise. Ultimately, however, former FCC Chairman Newton Minow captured the prevailing conclusion in stating that "it is largely true that the Commission has failed to develop any coherent policy in the comparative field. Almost every student of the Commission has reached this conclusion...."
24. Minow, supra note 1, at 148.
25. Reed Hundt, Chairman, Fed. Commc'ns Comm'n, Speech at the Center for National Policy (May 6, 1996), http://www.fcc.gov/Speeches/Hundt/spreh624.txt.
26. Richard A. Posner, Taxation By Regulation, 2 BELL J. ECON. & MGMT. SCI. 22 (1971);
27. see also Richard A. Posner, Theories of Economic Regulation, 5 BELL J. ECON. & MGMT. SCI. 335 (1974) (analyzing and critiquing the "public interest" theory of government regulation).
28. Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 LAW & CONTEMP. PROBS. 505, 512 (1969).
29. Id. at 528. For my own suggestions on spectrum policy reform
30. see Philip J. Weiser, The Untapped Promise of Wireless Spectrum (Hamilton Project, Brookings Inst., Discussion Paper No. 2008-08, 2008), http://www.brookings.edu/~media/Files/rc/papers/2008/07-wireless-weiser/ 07-wireless-weiser.pdf (arguing that the FCC should measure how spectrum is used, identify blocks of unused spectrum, and encourage flexibility in leasing and licensing to utilize unused spectrum).
31. Johnson, supra note 20, at 530.
32. COMM'N ON ORG. OF THE EXECUTIVE BRANCH OF THE GOV'T, TASK FORCE REPORT ON REGULATORY COMMISSIONS 95 (1949).
33. JAMES LANDIS, REPORT ON REGULATORY AGENCIES TO THE PRESIDENT-ELECT 53 (1960).
34. See Johnson, supra note 20, at 530 (describing the formulation of proceedings authorizing domestic satellite use).
35. Id.
36. The dulled incentives of AT&T in this case are consistent with the dynamics described in CLAYTON M. CHRISTENSEN, THE INNOVATOR'S DILEMMA: WHEN NEW TECHNOLOGIES CAUSE GREAT FIRMS TO FAIL (1997).
37. Jerry A. Hausman, Valuing the Effect of Regulation on New Services in Telecommunications, in BROOKINGS PAPERS ON ECONOMIC ACTIVITY: MICROECONOMICS 1, 23 (Martin Neil Baily et al. eds., 1997).
38. See Schurz Commc'ns, Inc. v. FCC, 982 F.2d 1043 (7th Cir. 1992) (holding that new finsyn rules were arbitrary and capricious).
39. Id. at 1050.
40. Id.
41. Hundt, supra note 18.
42. Drew Clark, Industry Experts Disagree on Best Path to Improve FCC, TECHNOLOGY DAILY, Mar. 24, 2005, http://www.nationaljournal.corn/pubs/techdaily/ pmedition/2005/tp050324.htm.
43. Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 22 F. C. C. R. 8064 (2007) (report and order and further notice of proposed rulemaking) (explaining the need to revise access rules to expand 700 MHz spectrum availability and establishing new licensing regulations).
44. Id. at 8086 (noting the debate concerning adopting additional rules to promote secondary market transactions).
45. Leslie Cauley, New Rules Could Rock Wireless World, USATODAY. COM, July 10, 2007, http://www.usatoday.com/money/industries/telecom/2007-07-09- wirelesstelecom-n.htm.
46. IP Democracy, http://www.ipdemocracy.com/archives/2007/09/13/002651 (Sept. 13, 2007, 23:15 EST);
47. see also IP Democracy, http://www.ipdemocracy.com/archives/2007/09/05/ 002640 (Sept. 5, 2007, 09:17 EST) ("Martin never made his proposal public and everybody was working off of press reports and rumors.").
48. Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 22 F. C. C. R. 15, 289 (2007) (second report and order) (addressing several issues left untouched by the initial Report and Order and Further Notice of Proposed Rulemaking).
49. See Posting of Richard Whitt to Google Public Policy Blog, http://googlepublicpolicy.blogspot.com/2007/10/pro-consumer-spectrum-auction- rulesat.html (Oct. 3, 2007, 14:29 EST) (noting that in the wake of the revised 700 MHz auction rules, Verizon Wireless lobbied the FCC to restrict consumer choice provisions of the rules).
50. Id.
51. According to one account, this decision was not for lack of trying by Chairman Martin. See Jeffrey Silva, Martin Working to Revise 700 MHz Open-Access Provisions, RCRWIRELESS, Sept. 26, 2007, http://www.rcrwireless.com/article/ 20070926/SUB/70926006/Martin-working-to-revise-700-MHz-open-access-provisions.
52. 47 U. S. C. § 532 (g) (2000).
53. Press Release, Fed. Commc'ns Comm'n, FCC Adopts 13th Annual Report to Congress on Video Competition and Notice of Inquiry for the 14th Annual Report (Nov. 27, 2007), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-278454A1. pdf.
54. See Hearn, supra note 5 ("Not only did [Chairman Martin] rely on one and only one data source-which turned out to be unreliable-but he was also nabbed suppressing FCC-generated data that flatly contradicted his assertions about the level of cable penetration. ").
55. DECEPTION AND DISTRUST, supra note 6, at 13.
56. Jim Puzzanghera, supra note 12.
57. Statement of Jonathan S. Adelstein, Comm'r, Fed. Commc'ns Comm'n, Re: Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 06-189, Thirteenth Annual Report (Nov. 27, 2007), at 1 http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-278454A4.pdf.
58. As Commissioner Adelstein put it, One of the reasons for the embarrassing delay of today's meeting, and the general disarray in working through these issues, was the effort to push through such an aggressive number of controversial items today without sufficient notice to all Commissioners. Short-circuiting Commission procedures short-changes the American public in the end. This is particularly true given that nothing we are considering today requires immediate action. There are numerous items that would have benefited greatly from more deliberation and care.
59. Id. at 3. In that same proceeding, Commissioner Robert McDowell also questioned Chairman Martin's management of the deliberative process, explaining that [i]nterestingly, this year, in a disturbing development, the FCC's most recent Form 325 data was not made available to commissioners for review until 7:09 p. m. last night. It was only made available once it was obvious that a majority of the Commission would not support the initial draft of this Report because it was such a dramatic departure based on mysterious statistical manipulation. But why was this data omitted or suppressed to begin with? Was it because it concluded cable penetration was only at 54 percent, just like last year? Statement of Robert M. McDowell, Comm'r, Fed. Commc'ns Comm'n, Dissenting in Part, Re: Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 06-189, Thirteenth Annual Report (Nov. 27, 2007), at 1, http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC- 278454A6.pdf.
60. Kevin J. Martin, Op-Ed., The Daily Show, N. Y. TIMES, Nov. 13, 2007, at A29.
61. Federal Communications Commission Oversight Hearing Before the S. Comm. on Commerce, Science & Transportation, 110th Cong. 2 (2007) (testimony of Jonathan S. Adelstein, Comm'r, Fed. Commc'ns Comm'n), http://hraunfoss.fcc.gov/ edocs-public/attachmatch/DOC-278905Al.pdf. Ironically, the regulations being considered were to replace a set of regulations that the Third Circuit invalidated because, among other reasons, they were adopted without sufficient public notice to allow careful deliberation and examination of their weaknesses.
62. See Prometheus Radio Project v. FCC, 373 F.3d 372, 409-12 (3d Cir. 2004) (remanding regulations to the FCC for further consideration because the Commission's notice that it planned to create a "new metric" to "reformulate [its] mechanism for measuring diversity and competition in a market", and the fact that the commission was "contemplating 'designing] a test that accords different weights to different outlet types, '" did not allow public scrutiny of the regulations which were adopted, prejudicing the appellants).
63. See Federal Communications Commission Oversight Hearing Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. 4 (2007) (written statement of Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-278904A1.pdf ("[A]lthough not required, I took the unusual step of publishing the actual text of the one rule I thought we should amend.").
64. Press Release, Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n, Media Ownership (Dec. 18, 2007), http://www.fcc.gov/kjml21807-ownership.pdf (explaining adoption of media ownership rules).
65. Statement of Michael J. Copps, Comm'r, Fed. Commc'ns Comm'n, Concur in Part, Dissent in Part, Promoting Diversification of Ownership in the Broadcasting Services 2 (Dec. 18, 2007), http://hraunfoss.fcc.gov/edocs-public/ attachmatch/FCC-07-217A3.pdf [hereinafter Copps Statement].
66. Promoting Diversification of Ownership in the Broadcasting Services, 23 F. C. C. R. 5922 (2008). For the newspaper-broadcast cross-ownership rule, the FCC released the text of the order around six weeks after the initial vote.
67. See 2006 Quadrennial Regulatory Review, 23 F. C. C. R. 2010 (2008).
68. In particular, Commissioners Copps and Adelstein noted upon the release of the newspaper-broadcast cross-ownership rule, After being told we have to "hurry up" and vote by December 18, the Commission waited over a month and a half before finally issuing this Order. Apparently, it took the majority that long to finalize issues left unresolved at the time we voted. There is no reason we could not have heeded the wishes of many in Congress to take the time needed to work these kinks out before the Commission voted. Press Release, Fed. Commc'ns Comm'n, Joint Statement by Fed. Commc'ns Comm'n Comm'rs Michael J. Copps and Jonathan S. Adelstein on Release of Media Ownership Order 1 (Feb. 4, 2008), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-280001Al.doc.
69. IP Democracy, http://www.ipdemocracy.eom/archives/2007/ll/28/002781 (Nov. 28, 2007, 06:42 EST). Commissioner Copps offered similar assessments as to how the media ownership proceeding was conducted, explaining in his dissenting opinion, This is not the way to do rational, fact-based, and public interest-minded policy making. It's actually a great illustration of why administrative agencies are required to operate under the constraints of administrative process-and the problems that occur when they ignore that duty. At the end of the day, process matters. Public comment matters. Taking the time to do things right matters.
70. Copps Statement, supra note 53, at 3.
71. Matthew Lasar, FCC Insider: This Place Is Hell; Silent Protest Planned, ARS TECHNICA, Mar. 16, 2008, http://arstechnica.com/tech-policy/news/2008/03/ fcc-insider-thisplace-is-hell-silent-protest-planned.ars. Reportedly, an FCC staff person related the following: "In the past I may or may not have agreed with the outcome, but at least the proper procedures were followed. Now they tell us 'what are the media reform groups going to do: file a class action lawsuit? Just do it.' But ethically I have to sleep at night. It's not the decision, it's how the decision is reached. The situation has become arbitrary and capricious."
72. Id.
73. WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 1.
74. Jeffrey J. Rachlinski & Cynthia R. Farina, Cognitive Psychology and Optimal Government Design, 87 CORNELL L. REV. 549, 561 (2002).
75. Id. at 561-62.
76. Philip J. Weiser, Alfred Kahn as a Case Study of a Political Entrepreneur, 7 REV. NETWORK ECON. 603, 607 (2008), http://www.rnejournal.com/ artman2/uploads/l/weiser-RNE-dec08.pdf (footnote omitted). as Kahn described the CAB's process for generating opinions before his arrival, [A] lawyer on the General Counsel's staff, amply supplied with blank legal tablets and a generous selection of cliches-some, like "beyond-area benefits", "route strengthening" or "subsidy need reduction", tried and true, others the desperate product of a feverish imagination-would construct a work of fiction that would then be published as the Board's opinion.
77. MCCRAW, supra note 17, at 286.
78. MCCRAW, supra note 17, at 126-27.
79. As FTC Chairman Kovacic described, the FTC was loathed by Congress in the early 1980s, with one congressman concluding that it was "'a rogue agency gone insane.'" William E. Kovacic, The Federal Trade Commission and Congressional Oversight of Antitrust Enforcement, 17 TULSA L. J. 587, 590 (1982) (quoting Rep. William Frenzel). By the time Kovacic wrote his article on the topic, he concluded that the agency was already mending its ways and becoming more effective.
80. Id. at 671 (noting its effective use of, among other things, "planning, research, and preliminary screening"). For a more recent positive appraisal of the agency
81. see Steven Hetcher, The FTC as Internet Privacy Norm Entrepreneur, 53 VAND. L. REV. 2041 (2000).
82. Timothy J. Muris, Principles for a Successful Competition Agency, 72 U. CM. L. REV. 165, 168 (2005).
83. Former FTC Commissioner Philip Elman, for example, concluded in the early 1970s that the "best thing to do would be to start all over again, abolish the [C]ommission and set up a new agency." NORMAN I. SILBER, WITH ALL DELIBERATE SPEED: THE LIFE OF PHILIP ELMAN 368 (2004).
84. Statement of Mr. Christy Swords, Director of Regulatory Affairs, ITV plc, at the House of Lords Select Committee 11 (Apr. 24, 2007), www.parliament.uk/ documents/upload/correctedEV920070424.pdf.
85. Id. at 4.
86. The Landis Report highlights this phenomenon, reporting that criteria of various different kinds are articulated but they are patently not the grounds motivating decision. No firm decisional policy has evolved from these case-by-case dispositions. Instead the anonymous opinion writers for the Commission pick from a collection of standards those that will support whatever decision the Commission chooses to make.
87. LANDIS, supra note 24, at 53.
88. Indeed, in the Landis Report's assessment of administrative agencies, it concluded that the FCC "more than any other agency, has been susceptible to ex parte presentations."
89. Id.
90. Former Chairman Hundt and Greg Rosston suggested a similar approach, albeit one that would also involve the Department of Justice. See Hundt & Rosston, supra note 10, at 34.
91. Former FCC Chairman Newton Minow claims that this failure is endemic to the multimember commission structure, which drives the practice of "postpon[ing] the policy decision to resolution on a case-by-case basis which all too often means inconsistent decisions with the public and the regulated industry not knowing the ground rules." Minow, supra note 1, at 147. This claim is questionable, however, insofar as other regulatory agencies, such as the Securities and Exchange Commission (SEC) and the FTC, do not face this systemic problem despite their need to operate as a collegial body.
92. Former FCC Commissioner Johnson bemoaned this state of affairs by highlighting that if the Commission precommitted to clear goals, methodologies, and constrained its discretion through a commitment to transparent institutional processes, "The FCC staff and the parties that appear before the Commission would have more specific knowledge of what is required of them in the regulatory scheme, and the regulated industries would operate more efficiently by knowing more about what the Commission's regulatory policies were designed to accomplish."
93. Johnson, supra note 3, at 179.
94. For the European Commission's press release, see Press Release, Europa, Commission Consults on How to Put Europe into the Lead of the Transition to Web 3.0 (Sept. 29, 2008), http://europa.eu/rapid/pressReleasesAction.do?reference= IP/08/1422&format=HTML&aged=0&language=EN&guiLanguage=nl. For the background working paper
95. see Cornm'n of the European Cmtys., Early Challenges Regarding the "Internet of Things" (Working Document, 2008), http://ec.europa.eu/ information-society/policy/rfid/documents/earlychallengesIOT.pdf.
96. COMM'N OF THE EUROPEAN CMTYS., COMMUNICATION ON FUTURE NETWORKS AND THE INTERNET 10-11 (2008), http://ec.europa.eu/information-society/eeurope/i2010/ docs/future-internet/act-future-networks-internet-en.pdf.
97. See, e.g., OFCOM: OFFICE OF COMMUNICATIONS, A CASE STUDY ON PUBLIC SECTOR MERGERS AND REGULATORY STRUCTURES (2006), http://www.ofcom.org.uk/about/accoun/ case-study/case-study.pdf (addressing, among other matters, the politics and legislation, public engagement, and governance issues surrounding Ofcom's development and future public-sector mergers).
98. As former Chairman Muris explains, this approach follows similar efforts by Pitofsky and himself to engage in relevant policy research and development. See Muris, supra note 64, at 176-79 (detailing the FTC's efforts to increase their knowledge base, including holding multi-day workshops and fact-finding hearings).
99. Federal Trade Commission, Protecting Consumers in the Next Tech-Ade, http://www.ftc.gov/techade (last visited Oct. 31, 2009).
100. Federal Trade Commission, 2007 FTC Workshop: Ehavioral Advertising, http://www.ftc.gov/bcp/workshops/ehavioral/index.shtml (last visited Oct. 31, 2009).
101. See generally FED. TRADE COMM'N, ONLINE BEHAVIORAL ADVERTISING: MOVING THE DISCUSSION FORWARD TO POSSIBLE SELF-REGULATORY PRINCIPLES (2007), http://www.ftc.gov/os/2007/12/P859900stmt.pdf.
102. WILLIAM E. KENNARD, A NEW FEDERAL COMMUNICATIONS COMMISSION FOR THE 21ST CENTURY (1999), http://www.fcc.gov/Reports/fcc21.pdf.
103. Id. at 1.
104. Id. at 4.
105. Id. at 15.
106. Id. at 10-12.
107. Cf. id. at 4 (discussing the convergence of various technologies and the need for the FCC to respond through its regulations).
108. See generally id. at 6-9 (discussing goals and proposed changes at the FCC).
109. See SPECTRUM POLICY TASK FORCE, FED. COMMC'NS COMM'N, REPORT (2002), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-228542Al.pdf.
110. Compare, for example, the information related to the relevant goals of the agency with respect to spectrum and other issues. Compare Fed. Commc'ns Comm'n, Strategic Goals for Proceedings and Initiatives, http://wireless.fcc. gov/spectrum/proceeding.htm (last visited July 25, 2009)
111. with Fed. Commc'ns Comm'n, Strategic Goals for Competition, http://www.fcc.gov/competition (last visited July 25, 2009)
112. and Fed. Commc'ns Comm'n, Strategic Goals for Broadband, http://www.fcc.gov/broadband/ (last visited July 25, 2009)
113. and Fed. Commc'ns Comm'n, Strategic Goals for Media, http://www.fcc.gov/ mediagoals/ (last visited July 25, 2009).
114. See FED. COMMC'NS COMM'N, FCC HOMELAND SECURITY ACTION PLAN (2003), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-236428A2.pdf (announcing dual objectives to promote homeland security including strengthening protection of the communications infrastructure and promoting effective communication during emergencies).
115. See Establishment of an Interference Temperature Metric to Quantify and Manage Interference and to Expand Available Unlicensed Operation in Certain Fixed, Mobile and Satellite Frequency Bands, 22 F. C. C. R. 8938, 8938 (2007);
116. id. at 8940 (Copps, Comm'r, concurring).
117. To be sure, strategic planning should not involve a mechanistic or formalistic commitment to addressing particular issues at predetermined times, but it should provide for a self-conscious commitment to publicly identified priorities. as the Chairman of the U. K. Competition Commission explained, strategic planning '"cannot be too rigid and it cannot be too binding. [B]ut everything we do should take place... against a background of priorities and policy consciousness.'" WILLIAM E. KOVACIC, CHAIRMAN, FED. TRADE COMM'N, THE FEDERAL TRADE COMMISSION AT 100: INTO OUR 2ND CENTURY, at xii (2009), www.ftc.gov/os/2009/01/ftc100rpt.pdf (footnote omitted).
118. IP Democracy, http://www.ipdemocracy.com/archives/002640the-fcc-is-the- worst-communicator-in-washington.php (Sept. 5, 2007, 9:17 EST);
119. see also John Dunbar, FCC Shrouds Rulemaking in Secrecy, NEWS & OBSERVER (Raleigh, N. C.), Sept. 5, 2007, at 3A ("It's odd for an agency that has the word 'communications' as its middle name, but the Federal Communications Commission routinely leaves the public in the dark about how it makes critical policy decisions.");
120. Capital Ideas, http://www.multichannel.com/blog/Capital-Ideas/7925- Federal-Incornmunicado-Commission.php (Aug. 8, 2007) (discussing the evasive attitude used by the FCC commissioners when dealing with members of the press).
121. Video: Digital Broadband Migration Conference: Rewriting the Telecom Act (University of Colorado Law School 2005), http://itp.colorado.edu/itp-content/ sftpconference-videos (scroll to "The Digital Broadband Migration: Rewriting the Telecom Act", then follow "Part 6" hyperlink) (last visited Oct. 31, 2009).
122. 5 U. S. C. § 553 (b) (3) (2006). The D. C. Circuit has specified that the relevant concern is that "if the final rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the proposal."
123. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D. C. Cir. 1983).
124. See generally Broadcast Localism, 23 F. C. C. R. 1324 (2008).
125. Amy Schatz, Industry Seethes as FCC's Martin Sets New Curbs, WALL ST. J., Dec. 18, 2007, at A1.
126. Puzzanghera, supra note 12.
127. At the National Telecommunications and Information Administration (NTIA), for example, notices of proposed rulemakings often are both shorter in terms of the relevant background and focus commentators specifically on suggested rules. See, e.g., E-911 Grant Program, 73 Fed. Reg. 57, 567 (Oct. 3, 2008)
128. (to be codified at 47 C. F. R. pt. 400).
129. Jennifer Nou, Note, Regulating the Rulemakers: A Proposal for Deliberative Cost-Benefit Analysis, 26 YALE L. & POL'Y REV. 601, 610 (2008).
130. See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 23 F. C. C. R. 14, 301, 14, 452 (2008).
131. Letter from Laura Carter, Vice President for Fed. Gov't Affairs, Alltel Corp., to Marlene Dortch, Sec'y. Fed. Commc'ns Comm'n (Apr. 30, 2008), http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native-or-pdf= pdf&id-document=6520006854.
132. U. S. GOV'T ACCOUNTABILITY OFFICE, FCC SHOULD TAKE STEPS TO ENSURE EQUAL ACCESS TO RULEMAKING INFORMATION 4 (2007), http://www.gao.gov/new.items/d071046. pdf. In response to the Government Accountability Office's stinging report-which criticized the FCC's ex parte process on the ground that well-connected lobbyists can gain crucial information and insights about its processes not available to others-the FCC committed to post on its website all items that are circulating for a decision.
133. In a costly example of this phenomenon at work, Sprint was prevented from challenging certain FCC rules that might require it to vacate valuable spectrum because the company had failed to make its arguments in ex parte filings with sufficient specificity to be preserved for appellate review. See Sprint Nextel Corp. v. FCC, 524 F.3d 253, 256-57 (D. C. Cir. 2008).
134. Another obvious option-for the agency to police abuses in the ex parte process itself-is one that the FCC has shown itself unwilling or incapable of pursuing.
135. See Spectrum Talk, http://spectrumtalk.blogspot.com/2008/09/marcus- spectrum-solutionsfiles.html (Sept. 11, 2008, 11:57 EST) (presenting a filing with the FCC that took issue with the agency's consistent inability to enforce its ex parte rules over the past few years).
136. Ted Hearn, The Winds of Change, MULTICHANNEL NEWS, Jan. 26, 2008, http://www.multichannel.com/article/CA6525874.html. For a skeptical assessment of such suggestions
137. see Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 ADMIN. L. REV. 171 (1987).
138. To appreciate the need and cause for such embarrassment, consider that it is not unheard of for the FCC to leave proceedings languishing for longer than a decade. See Hearn, supra note 105 (noting pendency of petition to deny must-carry rights to TV stations that primarily air home-shopping programming).
139. Harry M. Shooshan III, A Modest Proposal for Restructuring the Federal Communications Commission, 50 FED. COMM. L. J. 637, 648 (1998).
140. Schurz Commc'ns, Inc. v. FCC, 982 F.2d 1043, 1048 (7th Cir. 1992) (citation omitted).
141. Commissioner McDowell apparently seconded that judgment in a private e-mail to his staff. See DECEPTION AND DISTRUST, supra note 6, at 14
142. (quoting McDowell as stating, "The books have been cooked to trigger the 70/70 rule.").
143. See Wireless E911 Location Accuracy Requirements, 22 F. C. C. R. 20, 105, 20, 108 (2007).
144. Id. at 20, 136 (Adelstein, Comm'r, approving in part, dissenting in part).
145. Id. at 20, 137.
146. See Wireless E911 Location Accuracy Requirements, 22 F. C. C. R. 10, 609, 10, 636-37 (2007) (Adelstein, Comm'r, concurring).
147. Wireless E911 Location Accuracy Requirements, 23 F. C. C. R. 4011, 4012 (2008).
148. Press Release, Fed. Commc'ns Comm'n, Commissioner Jonathan S. Adelstein Responds to Public Safety Bureau Stay Order (Mar. 12, 2008), http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-280787Al.pdf.
149. For a comprehensive assessment of the rulemaking process at administrative agencies (with a focus on the FAA), see U. S. GOV'T ACCOUNTABILITY OFFICE, AVIATION RULEMAKING: FURTHER REFORM IS NEEDED TO ADDRESS LONG-STANDING PROBLEMS (2001), http://www.gao.gov/new.items/dO1821.pdf.
150. See generally Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 F. C. C. R. 13, 028 (2008).
151. Id. at 13, 088 (McDowell, Comm'r, dissenting) ("Commissioner Tate and I received the current version of the order at 7 p. m. last night, with about half of its content added or modified. as a result, even after my office reviewed this new draft into the wee hours of the morning, I can only render a partial analysis.").
152. In that proceeding, the FCC backed off its effort to dictate matters after Chairman Martin left the agency, reassigning the proceeding to the administrative law judge (ALJ) and authorizing it to go forward. See John Eggerton, Cablers Win Respite on Network Access Claims, MULTICHANNEL NEWS, Jan. 27, 2009, http://www.multichannel.com/article/162848-Cablers-Win-Respite-On- Network-Access-Claims.php?rssid=20059.
153. GOV'T ACCOUNTABILITY OFFICE, FCC HAS MADE SOME PROGRESS IN THE MANAGEMENT
154. For a discussion of this issue, see Philip J. Weiser & Dale Hatfield, Spectrum Policy Reform and the Next Frontier of Property Rights, 15 GEO. MASON L. REV. 549, 558-68 (2008);
155. Weiser, supra note 21, at 26-28.
156. See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband over Power Line Systems (BPL Order), 19 F. C. C. R. 21, 265 (2004) (adopting new regulations to promote the "rapid introduction and development" of broadband systems).
157. Sirius Satellite Radio Inc., 23 F. C. C. R. 12, 301, 12, 324 (2008) (statement of Comm'r Tate).
158. Id. (describing the consent decree the FCC entered into with Sirius);
159. XM Radio, Inc., 23 F. C. C. R. 12, 325, 12, 347 (2008) (statement of Comm'r Tate) (describing the consent decree the FCC entered into with XM).
160. See, e.g., Unlicensed Operation in the TV Broadcast Bands, 23 F. C. C. R. 16, 807, 16, 808 (2008) (adopting new rules legalizing the unlicensed use of TV spectrum locations that are unused by licensed services);
161. see also Posting of Harold Feld to Wetmachine, http://www.wetmachine.com/ totsf/item/1256 (July 16, 2008, 18:53 EST) (complaining that the FCC should not "reward" users of illegal wireless microphones by offering them priority over authorized users).
162. The practice of treating enforcement actions as a political negotiation is discussed and criticized in the House Commerce Committee majority report. See DECEPTION AND DISTRUST, supra note 6, at 18-19, 23-24.
163. See Fed. Commc'ns Comm'n, Office of Administrative Law Judges, http://www.fcc.gov/oalj/ (last visited July 19, 2009).
164. Robert C. Atkinson, Telecom Regulation for the 21st Century: Avoiding Gridlock, Adapting to Change, 4 J. TELECOMM. & HIGH TECH L. 379, 396 (2006) (noting that state regulatory commissions, unlike the FCC, use ALJs regularly and arguing that the FCC should begin using them effectively).
165. Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53 ADMIN. L. REV. 551, 571 (2001). (Pubitemid 33656821)
166. Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 F. C. C. R. 13, 028, 13, 092 (2008) (McDowell, Comm'r, dissenting). as Commissioner McDowell explained, The evidence in the record is thin and conflicting. All we have to rely on are the apparently unsigned declarations of three individuals representing the complainant's view, some press reports, and the conflicting declaration of a Comcast employee. The rest of the record consists purely of differing opinions and conjecture.
167. Id. (footnote omitted).
168. For a discussion of FTC's use of administrative litigation, see Kovacic, supra note 91, at 42-45.
169. See Prepared Statement of the Fed. Trade Comm'n Before the House Comm. on Commerce, Sci., and Transp. 15-16 (Apr. 8, 2008), http://www.ftc.gov/os/ testimony/P034101reauth.pdf.
170. See A. Douglas Melamed, The Wisdom of Using the "Unfair Method of Competition" Prong of Section 5, GCP, Nov. 2008, at 12-24, http://www.wilmerhale.com/files/Publication/704e2922-6dn-4bb7-bd88-014695e523bl/ Presentation/PublicationAttachment/f5c9a3c8-3a90-4bl6-900b-2a54a5ba420a/ Melamed-Nov-08-l.pdf (arguing that agency members cannot be neutral and independent adjudicators because they unavoidably act to advance the interests of the agency and providing statistical evidence showing that the FTC consistently rules against respondents).
171. One commentator has referred to this tactic as "administrative arm-twisting." Lars Noah, Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997 WIS. L. REV. 873, 876.
172. Applications of Ameritech Corp., Transferor, and SBC Commc'ns Inc., Transferee for Consent to Transfer Control of Corporations Holding Commission Licensees and Lines Pursuant to Sections 214 and 310 (d) of the Communications Act and Parts 5, 22, 24, 25, 63, 90, 95, and 101 of the Commission's Rules (Ameritech Order), 14 F. C. C. R. 14, 712, 15, 197 (1999) (Powell, Comm'r, concurring in part and dissenting in part).
173. ANTITRUST DIVISION, U. S. DEP'T OF JUSTICE, ANTITRUST DIVISION POLICY GUIDE TO MERGER REMEDIES 2 (2004), http://www.usdoj.gov/atr/public/guidelines/ 205108.pdf.
174. See Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner Inc., Transferee, 16 F. C. C. R. 6, 547 (2001).
175. Id. at 6, 610.
176. Id. at 6, 713 (Powell, Comm'r, concurring in part and dissenting in part).
177. See Philip J. Weiser, Internet Governance, Standard Setting, and Self-Regulation, 28 N. K. Y. L. REV. 822, 842 (2001) (critically evaluating the FCC's decision in the AOL-Time Warner merger case).
178. See Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner Inc., Transferee, 18 F. C. C. R. 16, 835 (2003).
179. See SBC Commc'ns Inc. and AT&T Corp. Applications for Approval of Transfer of Control (AT&T Order), 20 F. C. C. R. 18, 290, 18, 392 (2005);
180. Verizon Commc'ns Inc. and MCI, Inc. Applications for Approval of Transfer of Control (Verizon Order), 20 F. C. C. R. 18, 433, 18, 537 (2005).
181. See Press Release, Fed. Commc'ns Comm'n, Chairman Kevin J. Martin Comments on Commission Policy Statement (Aug. 5, 2005), http://hraunfoss.fcc. gov/edocs-public/attachmatch/DOC-260435A2.pdf ("While policy statements do not establish rules nor are they enforceable documents, today's statement does reflect core beliefs that each member of this Commission holds regarding how broadband internet access should function. ").
182. See AT&T Order, 20 F. C. C. R. at 18, 350-51;
183. Verizon Order, 20 F. C. C. R. at 18, 509.
184. Verizon Order, 20 F. C. C. R. at 18, 573 (Abernathy, Comm'r, statement).
185. Ameritech Order, 14 F. C. C. R 14, 712, 14, 877 (1999).
186. See Applications for Consent to the Transfer of Control of Licenses XM Satellite Radio Holdings Inc., to Sirius Satellite Radio Inc., Transferee, 23 F. C. C. R. 12, 348, 12, 359 (2008) (listing the FCC's requirements in permitting the merger).
187. See Letter from Gigi B. Sohn, President, Public Knowledge, and Andrew J. Schwartzman, President & CEO, Media Access Project, to Kevin Martin, Chairman, Fed. Commc'ns Comm'n (July 10, 2008), http://fjallfoss.fcc.gov/prod/ ecfs/retrieve.cgi?native-or-pdf=pdf&id-document=6520033905 (arguing that the lengthy petition process and waiting for licenses to come up for renewal are not sufficient enforcement mechanisms and that the FCC should have an independent oversight position to enforce merger terms);
188. Letter from Paul P. Desai and Andrew J. Schwartzman, Media Access Project, to Marlene Dortch, Sec'y, Fed. Commc'ns Comm'n (July 9, 2007), http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native-or-pdf= pdf&id-document=6519541586 (arguing that, if approved at all, the proposed merger between Sirius and XM should be conditioned on the following requirements: (1) "A set aside for non-commercial, educational programming", (2) "Leased access of channels", (3) "[A] portion of the allocated spectrum returned for auction", and (4) "[C]arry[ing] local non-commercial, educational channels").
189. Harold W. Furchtgott-Roth, Testimony Before the Antitrust Modernization Comm'n 5-7 (Dec. 5, 2005), http://govinfo.library.unt.edu/amc/commission- hearings/pdf/Furchtgott-Roth-statement.pdf.
190. For a discussion of merger remedies and the appropriate role of regulatory authorities in them, see generally Philip J. Weiser, Reexamining the Legacy of Dual Regulation: Reforming Dual Merger Review by the DOJ and the FCC, 61 FED. COMM. L. J. 167 (2008).
191. See Gen. Motors Corp. & Hughes Elec. Corp. (News Corp. Order), 19 F. C. C. R. 473, 552-55 (2004).
192. Press Release, U. S. Dep't of Justice, Justice Department Will Not Challenge News Corp. 's Acquisition of Hughes Electronics Corp. (Dec. 19, 2003), http://www.usdoj.gov/opa/pr/2003/December/03-at-714.htm.
193. See News Corp. Order, 19 F. C. C. R. at 531-34.
194. Id. at 553-55.
195. DECEPTION AND DISTRUST, supra note 6, at 21.
196. Regulatory and Policy Problems Presented by the Interdependence of Computer and Communication Services and Facilities (Computer I), 28 F. C. C.2d 267 (1971).
197. 47 C. F. R. §§ 68. 1, 68.2 (2008).
198. Use of the Carterfone Device in Message Toll Telephone Service, 13 F. C. C.2d 420 (1968).
199. The same praise is owed to the FCC's extension of the Part 15 rules to authorize the use of spread spectrum, ultimately leading to the development of Wi-Fi technology. See generally Thomas W. Hazlett, A Rejoinder to Weiser and Hatfield on Spectrum Rights, 15 GEO. MASON L. REV. 1031, 1038 (2008) (noting that deregulation of the use of unlicensed bands for radio transmitters paved the way for the use of spread spectrum devices, including Wi-Fi routers and cordless phones).
200. See Joseph Farrell & Philip J. Weiser, Modularity, Vertical Integration, and Open Access Policies: Towards a Convergence of Antitrust and Regulation in the Internet Age, 17 HARV. J. L. & TECH. 85, 129-33 (2003) (highlighting the various actions taken in the Computer Inquiries and describing the changes made in the subsequent Computer II and Computer III decisions).
201. BPL Order, 19 F. C. C. R. 21, 265, 21, 300 (2004).
202. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D. C. Cir. 2008) (internal quotation marks and citation omitted).
203. Id. at 237.
204. Id. at 239.
205. See 2002 Biennial Regulatory Review, 18 F. C. C. R. 13, 620, 13, 887-901 (2003).
206. 373 F.3d 372, 435 (3d Cir. 2004) (remanding so that the FCC may justify or modify its method for setting numerical limits).
207. Id. at 412.
208. Mark Cooper, Junk Science and Administrative Abuse in the Effort of the FCC to Eliminate Limits on Media Concentration 5-6 (May 21, 2008) (unpublished paper, presented at the 2008 annual meeting of the International Communication Association), http://www.allacademic.eom//meta/p-mla-apa-research-citation/2/3/ 3/l/l/pages233118/p233118-l.php.
209. Consider, for example, that the D. C. Circuit has concluded that reliance on ex parte contacts is "impolitic" but not grounds for reversal. See Action for Children's Television v. FCC, 564 F.2d 458, 473 (D. C. Cir. 1977).
210. See, e.g., In re Core Commc'ns, Inc., 531 F.3d 849, 861-62 (D. C. Cir. 2008) (granting a writ of mandamus and ordering the FCC to respond to a 2002 remand by 2008).
211. For a broad discussion about how such bodies are and can best be used, see BRUCE L. R. SMITH, THE ADVISERS: SCIENTISTS IN THE POLICY PROCESS (1992).
212. Letter from Russell J. Lefevre, President, IEEE-USA, to Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n (June 5, 2008), http://www.ieeeusa.org/policy/ policy/2008/060508.pdf.
213. GOV'T ACCOUNTABILITY OFFICE, FCC NEEDS TO IMPROVE ITS ABILITY TO MONITOR AND DETERMINE THE EXTENT OF COMPETITION IN DEDICATED ACCESS SERVICES 15 (2006), http://www.gao.gov/new.items/d0780.pdf.
214. See generally Philip M. Napoli & Joe Karaganis, Toward a Federal Data Agenda for Communications Policymaking, 16 COMMLAW CONSPECTUS 53 (2007) (outlining the problems associated with communications policymaking due to the deficiencies in availability and accessibility of data sources);
215. David Robinson et al., Government Data and the Invisible Hand, 11 YALE J. L. & TECH. 160 (2009) (proposing that the government redesign the means in which it provides information to the public by creating a publicly accessible infrastructure).
216. In 2008, the FCC finally revised its decade-long measurement procedure, but that revised model will not go into effect until 2009. See Development of Nationwide Broadband Data to Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans, Improvement of Wireless Broadband Subscribership Data, and Development of Data on Interconnected Voice Over Internet Protocol (VOIP) Subscribership, 23 F. C. C. R. 9691 (2008)
217. reconsidered, 23 F. C. C. R. 9800 (2008).
218. See PHILIP J. WEISER, A FRAMEWORK FOR A NATIONAL BROADBAND POLICY 14-15 (2008) (discussing "ConnectKentucky" and California initiatives), http://www.aspeninstitute.org/sites/default/files/content/docs/pubs/ A-Framework-for-a-National-Broadband-Policy-0.pdf.
219. Martin H. Bosworth, Congress Passes Broadband Data Improvement Act, CONSUMERAFFAIRS. COM, Oct. 2, 2008, http://www.consumerafiairs.com/news04/2008/ 10/congress-broadband.html.
220. For a discussion as to how such an effort could operate, see Phillip J. Weiser, The Next Frontier for Network Neutrality, 60 ADMIN. L. REV. 273 (2008).
221. See id. at 291-92.
222. As Ellen Goodman related, [I]t seems natural that food manufacturers with a relatively good nutritional story to tell would disclose nutritional information. Kraft and Nabisco could then compete on nutritional value or Kraft could use nutritional information to distinguish its premium brands like Progresso. So one might think, and yet the market did not produce widespread disclosure of nutritional information until federal regulation required it. It was the regulation that created a market for nutritional information that now appears to be strong. Ellen P. Goodman, Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83, 139 (2006) (footnote omitted); see also Archon Fung et al., The Political Economy of Transparency: What Makes Disclosure Policies Effective? 16-17 (Dec. 2004), http://www.hks.harvard.edu/taubmancenter/ transparency/downloads/effectiveness.pdf (noting competition based on nutritional information after government regulation set forth framework for disclosure).
223. Service Quality, Customer Satisfaction, Infrastructure and Operating Data Gathering, 23 F. C. C. R. 13, 647 (2008).
224. The lack of effective information collection by the FCC "create[s] 'information vacuums that hamper just the kinds of analyses that have become an increasingly prominent part of contemporary media policymaking]' thereby undermining the agency's ability to engage in data-driven decisionmaking. Philip M. Napoli, Paradoxes of Media Policy Analysis: Implications for Public Interest Media Regulation 4-5 (2008) (McGannon Center Working Paper), http://fordham.bepress.com/cgi/viewcontent.cgi?article=1000&context= mcgannon-working-papers.
225. To its credit, the FCC has recognized that such a registry would help facilitate effective spectrum trading but has not developed one. In particular, the FCC has concluded that intensive spectrum leasing within the existing administrative regime "would require tradeoffs in multiple dimensions-e.g., time, space, geography, type of use, and technology-and that, in the absence of an effective facilitator, search costs would be high." Promoting Efficient use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets, 18 F. C. C. R. 20, 604, 20, 692 (2003).
226. See Robinson, supra note 174, at 160-61 (arguing that private actors are better suited to provide information to citizens and should be allowed to create and alter the ways individuals have access to public data).
227. See generally DON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING (2006) (highlighting various examples of mass and global internet collaboration).
228. See L. Gordon Crovitz, Op-Ed., From Wikinomics to Government 2.0, WALL ST. J., May 12, 2008, at A13 (describing the growth of user-generated content as it expands to various public citizen-driven endeavors).
229. See Nou, supra note 99, at 617-24;
230. id. at 621-22 ("[C]itizen deliberation is particularly important when valuing goods that are politically salient or that resonate with social meaning, lest the decision be-or be perceived to be-left to unelected technocrats."). For suggestions on how to enable more effective deliberation using new technologies, see Peter M. Shane, Deliberative America, 1 J. PUBLIC DELIBERATION Article 10 (2005)
231. (reviewing BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY (2004)
232. and ETHAN J. LEIB, DELIBERATIVE DEMOCRACY IN AMERICA: A PROPOSAL FOR A POPULAR BRANCH OF GOVERNMENT (2004)).
233. See Stephen Labaton, Agency's '04 Rule Let Banks Pile Up New Debt, and Risk, N. Y. TIMES, Oct. 3, 2008, at A1 (explaining how the SEC's supervisory program, led by the former SEC Chairman Christopher Cox, was deemed a "low priority").
234. See Lessig, supra note 7. This view, which depicts agency culture as fixed, follows a long-standing and credible depiction of how agencies operate. For an earlier such portrait
235. see Feller, supra note 4, at 654 ("Existing agencies have congenital characteristics which the most heroic efforts cannot change.").
236. Minow, supra note 1, at 146.
237. To be sure, Professor Magill has noted the importance of this largely unexamined issue. In so doing, however, she has taken the approach of traditional administrative law scholarship, viewing it from the perspective of the courts who review administrative regulation. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CM. L. REV. 1383, 1415 (2004) (noting that judicial review of this choice is effectively nonexistent, as courts tolerate the decision to proceed by a particular strategy "for a good reason, a bad reason, or no detectable reason").