By Harold Furchtgott-Roth
The writer, who served as one of many 5 commissioners of the Federal Communications fee for numerous years, explains why this and different executive businesses that aren't arrange with separation of powers in brain turn out undermining the guideline of legislations.
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Additional resources for A Tough Act to Follow?: The Telecommunications Act of 1996 and the Separation of Powers Failure
In an effort to avoid perpetual rulemakings, Congress placed timelines on most new regulatory responsibilities of the FCC and attempted to limit the discretion of the commission in many of its proceedings by providing detailed instructions. For example, the local market-opening provisions of the Act were designed to give the FCC less rather than more discretion. Sections 10 and 11 of the Act placed timelines on the FCC to review its rules. • The technology retardation problem. Congress inserted language into the law to promote innovation of new services, both in the preface and in specific sections of the Act, such as sections 10, 11, and 706.
And customers were left with the bad taste of unmet promises. The losses spread rapidly. Manufacturing firms that had financed their telecommunications customers’ expansion plans were left holding the bag. 38 A TOUGH ACT TO FOLLOW? The difficulties of companies such as Winstar became problems for vendors like Lucent that had sold equipment on credit to their credit-hungry, undercapitalized customers. The new telecommunications firms also owed large sums to incumbent carriers for connecting them to their customers.
All of the attendant problems of the combination of powers were exacerbated by the “public interest” standard. The rule of law was undermined because the FCC could write rules as it chose, regardless of specific statutory language, with less fear of reversal in court than would otherwise be the case. Similarly, the FCC would attempt to stretch the public interest standard to its administration of rules and its adjudication of disputes under them. Democratic institutions were subsequently undermined because the public found both Congress and the courts reluctant to interfere with the FCC and its public interest standard.