The Public Interest Standard: Is it Too Indeterminate to Be Constitutional?

Abstract

This article discusses the nondelegation doctrine that inheres in our constitutional separation of powers regime, and it examines whether the congressional delegation of public interest authority to the FCC violates the nondelegation doctrine. Under today's jurisprudence, the article acknowledges that even a standard as vague as the "public interest" is not likely to be found unconstitutional. But it argues that even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today's environment of increasing "convergence," with competition emerging across communications sectors, Congress should fulfill its responsibility to establish fundamental policy for an industry that is such an integral part of the overall economy. Congress should not wait to possibly be compelled by the courts to replace the public interest standard with more specific legislative guidance. Instead, it should provide the FCC with a clear roadmap toward a deregulatory endgame consistent with a competitive marketplace.

Note: This is a description of the paper and not the actual abstract.