III. Towards Principled and Collegial Decisionmaking
One critical challenge facing the FCC is how to evaluate more carefully how and when to use notice-and-comment rulemaking, adjudication, and merger review proceedings as strategies for making policy decisions. In all three contexts, the agency often takes procedural shortcuts that avoid engaging in true data development and evaluation. Consequently, the agency’s “quasi” status-as a quasi-executive, quasi-legislative, and quasi-judicial body-becomes an impediment, rather than an asset, in addressing economic and social problems. As former FCC Chair Newton Minow put it, the FCC’s ineffective use of this authority leaves it in “a never-never land” that produces only “quasi-solutions.”[97] To highlight the failings in each context and the need for a more well-thought out strategy of how they should be used, I discuss one example of each and present a number of different possible reforms.
[97] Minow, supra note 1, at 146.
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