A. Notice and Comment Rulemaking
The theory of notice-and-comment rulemaking is that an agency can use this process to develop its policy judgments. The weakness of this format is that it does not provide the agency with an effective avenue for developing an empirical basis for and understanding of the issues involved in a regulatory policy domain. As Judge Posner explained in observing the agency’s handling of the finsyn rules, “[t]he nature of the record compiled in a notice-and-comment rulemaking proceeding-voluminous, largely self-serving commentary uncabined by any principles of reliability, let alone by the rules of evidence-further enlarges the Commission’s discretion and further diminishes the capacity of the reviewing court to question the Commission’s judgment.”[98] Indeed, the appeal of using a procedure that can lead to “a cooking the books,” as Commissioner Adelstein noted as to an earlier rulemaking,[99] leads the FCC to rely almost exclusively on the paper record of the notice-and-comment rulemaking process and the use of the opaque ex parte process as a means of focusing in on its conclusions.
To appreciate the value of a process focused on data-driven analysis, consider the FCC’s recent development of a location mandate for E-911 calls made from wireless phones. At a high level of generality, there was a consensus that facilitating better access to this information for public safety answering points (PSAPs) was an important public policy goal. In conducting the proceeding, however, the FCC used some of the same tactics noted above, seeking to impose greater specificity as to the location accuracy that wireless providers must share with PSAPs after a rushed process and on the basis of an ex parte proposal that was subject to no public comment and no agency deliberation.[100]
In dissenting from the E911 location Order, Commissioner Adelstein noted that “while I support providing first responders with the best data possible, today’s item is fraught with highly dubious legal and policy maneuvering that bypasses a still developing record on what should be the reasonable and appropriate implementation details.”[101] In particular, Commissioner Adelstein added that:
Given the huge commitment of resources and effort needed to make the vast progress we have yet to make, a collaborative, cooperative approach is the most effective way to achieve the goals all of us share. Adopting in whole cloth an eleventh hour proposal at the stroke of Sunshine’s end is not the way to promote an atmosphere for progress. Instead of working with all stakeholders, the Commission today simply adopts on a Tuesday a proposal filed on Friday. Offering no opportunity for deliberation or participation by so many stakeholders does not befit an expert agency.[102]
In highlighting the FCC’s questionable conduct, Adelstein noted that the agency should not have rushed to a decision on a paper record, but rather should have taken advantage of workshops and collaborative forums to reach a solution that all parties, at least in principle, were committed to reaching.[103] Ultimately, the Public Safety and Homeland Security Bureau acknowledged that the Order was overly aggressive and imposed a stay,[104] prompting Commissioner Adelstein to highlight that the earlier decision to plow “forward with [mandating] compliance benchmarks without a full record, rather than conducting this proceeding in a more thoughtful and deliberate manner, [did] not truly advance E911.”[105]
Rulemaking proceedings conducted on a paper record can serve a useful function. They are not, however, the right tool for all regulatory policy challenges. Moreover, they need to be used in a more strategic context-relying on developed knowledge and allowing for informed deliberation-to be successful public policymaking tools. Notably, rulemakings need not be viewed as either/or tools to the use of adjudication, but can actually follow from and be informed by adjudication. Finally, rulemakings must be managed with appropriate oversight-neither rushing issues to a premature judgment nor allowing them to linger without any resolution.[106]
[98] Schurz Commc’ns v. FCC, 982 F.2d 1043, 1048 (7th Cir. 1992).
[99] Commissioner McDowell apparently seconded that judgment, in a private email to his staff. See Deception and Distrust, supra note __, at 14 (quoting McDowell as stating “[t]he books have been cooked to trigger the 70/70 rule.”).
[100] Wireless E911 Location Accuracy Requirements, Report & Order, 22 FCC Rcd. 20,105 (2007).
[101] Id. at 20,136 (statement of Commissioner Jonathan S. Adelstein approving in part, dissenting in part).
[102] Id. at 20,137.
[103] See Wireless E911 Location Accuracy Requirements, Notice of Proposed Rulemaking, 22 FCC Rcd. 10,609, 10,636-37 (2007) (concurring statement of Commissioner Jonathan S. Adelstein)
[104] Wireless E911 Location Accuracy Requirements, Order, 23 FCC Rcd. 4011.
[105] Press Release, FCC, Commissioner Jonathan S. Adelstein Responds to Public Safety Bureau Stay Order (Mar. 12, 2008), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-280787A1.pdf.
[106] For a comprehensive assessment of the rulemaking process at administrative agencies (with a focus on the FCC), see GAO, Further Reform is Needed to Address Long-standing Problems (2001), http://www.gao.gov/new.items/d01821.pdf.
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