The “Vast Wasteland” Speech Revisited

It 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. …