FCC Chairman Kevin Martin gave an interesting, thoughtful talk last Thursday as the featured speaker at a program sponsored by the American Bar Association's Administrative Law & Regulatory Practice Section. His prepared remarks are posted on his FCC website.
Before an audience of administrative law afficianados, including me, Chairman Martin explained why we should want to be cautious, in our system of democratic governance, about giving administrative agencies too much unbridled discretion, even as he acknowledged the FCC may use such discretion to achieve sound policy results. An example of employing the FCC's discretion, reinforced with a good dose of Chevron deference, in the interest of sound policymaking is the FCC's deregulatory action in the broadband proceedings that led to the Supreme Court's affirmance in the Brand X decision.
In his address, Chairman Martin cited as worthy of concern the breadth of judicial deference to agency decisions under Chevron and the FCC's broad discretion, as interpreted by the D.C. Circuit, to implement the biennial regulatory review requirement. On the latter, he pointed out that the D.C. Circuit, over his dissent, had interpreted the Communications Act's Section 11 directive to the agency to repeal rules that are "no longer necessary in the public interest as a result of meaningful economic competition" as giving the agency more discretion to leave outdated rules in place than, to his mind, Congress had intended.
Regarding judicial deference to an agency's decisions, I have recently suggested that it would be more consistent with the political accountability and separation of powers rationale upon which the Chevron decision is premised, and, indeed, the separation of powers at the heart of our tripartite constitutional scheme, for independent agencies like the FCC to receive a lesser measure of Chevron deference than Executive Branch agencies. You will find my whole argument set forth in my Spring 2006 Administrative Law Review article entitled, "Defining Deference Down: Independent Agencies and Chevron Deference."
I suspect that Kevin Martin might not go as far as I go in my law review piece, and, in any event, in his speech to the Ad Law group he was articulating prudential concerns, rather than laying out a legal or constitutional argument. But anytime the head of a regulatory agency expresses caution about the exercise of whatever broad discretion he or she may possess, such self-abnegation is to be applauded. Regulatory modesty is often in short supply, and it is becoming.