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Congressional abdication of legislative responsibilities reinforces judicial tyranny. When life-tenured federal judges vacate rules promulgated by administrative agencies following congressional guidelines, our republican system is threatened. Congress is duty-bound to rein in renegade courts that inappropriately interfere with regulatory processes by clarifying governing standards. To do so will not only reinforce legislative prerogatives over regulation, but also will preclude unnecessary (and costly) litigation by private parties asserting varying interpretations of law. When Congress fails to clarify standards — especially when court rulings lead to a confused state of law — public confidence in regulation understandably wanes. An example of how courts can undermine vague regulatory policy are some recent decisions repealing Federal Communications Commission (FCC) rules; the decisions have left federal communications law in a muddied state. The FCC is empowered to adopt and enforce rules regulating valuable transmission spectrum. It is universally recognized that, in order for these rules to protect the public interest, they must facilitate viewpoint “diversity” — a politically charged ambiguity, the meaning of which has been long debated. The FCC must interpret Congress’ directives in order to promote rules that permit viewpoint diversity, notwithstanding Congress’ failure to enact bright-line diversity guidelines. Worse, the FCC’s mission was made much more complex in 1996, when the Communications Act was last amended. The government amended the act to permit market forces to play a greater role in the allocation and use of spectrum. Accordingly, FCC rules must not only facilitate the vague concept of diversity, but also they must limit government interference with communications markets. The tension between these competing goals is obvious. Under both Democratic and Republican administrations, the FCC has failed to regulate effectively under these confused criteria. Appellate courts, including the U.S. Supreme Court, have repeatedly nullified the FCC’s attempts to straddle the fine line between deregulation and diversity promotion. Some courts argued that the FCC’s rules did not sufficiently permit market forces to set price and output for communications services. Others felt that the record evidence did not support the FCC’s contention that its regulations promoted diversity. As the FCC is confronted with a schizophrenic and vaguely defined communications policy, it is now virtually impossible for it to adopt any broad rules implementing the act without being second-guessed by the judiciary. For example, on three recent occasions, the FCC promulgated rules concerning the conditions under which local telephone monopolists were required to interconnect their facilities (e.g., telephone lines and central switches) with those owned by new telephony entrants. These entrants were inspired by advances of technology and goaded by legislators bent on sparking competition in the markets (so as to break the grip of the Bell incumbents) to provide local telephone service to consumers. (Before the 1996 amendments, monopolist Bell companies were the sole providers of local telephone services, necessitating strict regulatory and judicial oversight.) The FCC adopted these rules after its attorneys, economists, engineers and other professionals expended tens of thousands of hours reviewing the matter. Each time the rules were enacted, appellate courts found that they were contrary to the vague standards of the act. AN INTOLERABLE STATE The FCC also has recently attempted to regulate media ownership in video markets. On a number of occasions, the FCC constructed rules that identify the number of local television broadcast stations and newspapers that can be owned by a single entity. After numerous attacks on these rules (some finding them too restrictive, others too lenient), appellate courts struck them down. And an appellate court recently held that the FCC’s most recent media ownership regulations — adopted after an exhaustive review of thousands of pages of comments including legal, social and economic analysis, empirical evidence, and industry and consumer data — was not adequately supported by the record. Unless the Supreme Court takes up the case, the FCC will initiate another resource-intensive public comment process on this issue, only to be challenged again in court; all of this comes at enormous taxpayer expense. This error-prone and vastly inefficient administrative law process is not to be countenanced. The good-faith rulings of a federal agency charged with consumer welfare should not be repeatedly vacated because it failed to satisfy the whims of judges interpreting broad legal maxims. To remedy the problem in the communications law arena, Congress should guide courts and private parties by enacting bright-line rules that satisfy the purposes of the act. Litigation is undermining the FCC. While private parties should have access to the courts to challenge FCC actions that are unconstitutional or otherwise illegal, such challenges should fail when the FCC’s actions are rationally related to promoting bright-line communications policy. Congress must now adopt such bright-line rules to permit the FCC to fulfill its role and to eschew courts from undermining congressional dictates. To do otherwise will cause continued confusion to owners and consumers of media and will cause the FCC’s status as a regulator to be further eroded. In the words of the Supreme Court, “liberty can find no refuge in a jurisprudence of doubt.” Matthew L. Cantor is a partner at New York s Constantine & Partners, where he handles matters related to antitrust and communications. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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