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

I. INTRODUCTION More than three hundred years ago, in the second of his famous Two Treatises, John Locke wrote that the legislature "cannot transfer the [p]ower of [m]aking [l]aws to any other hands. For it being but a delegated [p]ower from the [p]eople, they, who have it, cannot pass it over to others."(1) In 1927, when Congress passed the initial legislation to oversee the nascent broadcasting industry, it delegated authority to the newly created regulatory agency, then called the Federal Radio Commission, to regulate broadcasters (and other users of the radio spectrum) in the "public interest."(2) This standard has proven so indeterminate that, in adopting it, Congress passed off to the new agency the power to make law in a way that would surely shock Locke and the founders of our nation. The Founders relied heavily on their understanding of Locke in devising a constitution based on separation of powers. They relied even more heavily on "the celebrated Montesquieu."(3) In urging ratification of the proposed Constitution, Madison quoted extensively from Montesquieu in The Federalist No. 47, including Montesquieu's famous injunction that "`[w]hen the legislative and executive powers are united in the same person or body, ... there can be no liberty.'"(4) Thus, when the Founders gathered in Philadelphia in the summer of 1787 to produce the Constitution, they wrote in Article I that "all legislative [p]owers herein granted shall be vested in a Congress of the United States."(5) While Article I remains unchanged, a lot of water has passed under the constitutional bridge since 1787 regarding the separation of powers doctrine--so much so that perhaps, as a practical matter, no constitutional limits exist on Congress's ability to delegate its lawmaking authority to a federal agency. This Article argues, however, that some limits do constrain Congress's ability to transfer lawmaking authority to another entity. Moreover, those nondelegation boundaries have been transgressed when Congress authorizes its delegatee--in this case the Federal Radio Commission's successor, the Federal Communications Commission ("FCC" or "Commission")--to simply act in the "public interest." In short, this Article will argue that the public interest standard, despite its longstanding history in the context of regulation of the communications industry, is inconsistent with the separation of powers principles vindicated in our constitutional system through the nondelegation doctrine. The Communications Act of 1934 ("1934 Act") delegates authority to the FCC to regulate in the public interest with regard to both wireline and wireless communications.(6) Indeed, Congress has directed or authorized the FCC to act in the public interest in nearly one hundred statutory provisions.(7) Not surprisingly, much of the agency's most important regulatory activity takes place under the "public interest" rubric. For example, in the name of the public interest, the FCC, at various times, has required or "encouraged" broadcasters to air particular types of programming, such as political broadcasts and editorials, news and weather reports, and children's programming. At the same time, it has prohibited or "discouraged" broadcasters from airing other types of programming, such as songs containing drug-oriented lyrics or too much sex.(8) Recently, in the face of a fairly clear directive that it await further direction from Congress, the FCC relied on the public interest standard to mandate that broadcast networks and other multichannel video programming distributors provide a minimum number of hours of programming with narrated video descriptions.(9) The FCC has employed its public interest authority to promulgate multiple- and cross-ownership rules, which determine or affect the structure and organization of the broadcasting, newspaper, cable, cellular, and other communications sectors.(10) Similarly relying upon the public interest standard, in the context of reviewing transfers of controls of licenses and other forms of authorization, the FCC has imposed conditions on mergers that go far beyond the existing requirements of the statute or its own rules. …