18 Pages Posted: 4 Feb 2009
Date Written: December 2008
This article is part of a symposium issue entitled, New Frontiers: Public Interest Regulation in a Converging Twenty-First Century Media Marketplace. The occasion of the symposium is the 40th anniversary of the Supreme Court's decision in Red Lion Broadcasting Co. v. FCC. Red Lion is best known for providing further sanction against constitutional attack for the Federal Communications Commission's (FCC) public interest regulation of broadcasting content. To be sure, the constitutionality of the FCC's administrative exercise of its public interest authority had been upheld in the early years of broadcast regulation, most notably in FCC v. Pottsville Broadcasting Co. and National Broadcasting Co. v. United States. But Red Lion was icing on the public interest cake - to the extent the public interest standard needed further icing. What I aim to do in this essay is, at bottom, fairly modest. I want to suggest, in light of all the changes that have occurred in the communications marketplace in the forty years since Red Lion, that the FCC itself should act more modestly. In an exercise of regulatory self-restraint, going forward the agency should narrow the exercise of its public interest authority. Through either the issuance of policy statements or case-by-case adjudication, or both, the agency should demonstrate its understanding that it no longer serves the public's interest for the FCC to exercise unbridled public interest regulatory authority. At the end, I will suggest several specific instances in which the FCC could commence this exercise in regulatory modesty.
Keywords: broadcast regulation, public interest regulation, FCC regulation
JEL Classification: K23, L96
Suggested Citation: Suggested Citation
May, Randolph J., A Modest Plea for FCC Modesty Regarding the Public Interest Standard (December 2008). Administrative Law Review, Vol. 60, No. 4, 2008. Available at SSRN: https://ssrn.com/abstract=1337032