The Internationalization of Agency Actions

U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating American and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest

Enforcement in Dynamic Spectrum Access Systems

The spectrum access rights granted by the Federal government to spectrum users come with the expectation of protection from harmful interference. As a consequence of the growth of wireless demand and services of all types, technical progress enabling smart agile radio networks, and on-going spectrum management reform, there is both a need and opportunity to use and share spectrum more intensively and dynamically. A key element of any framework for managing harmful interference is the mechanism for enforcement of those rights. Since the rights to use spectrum and to protection from harmful interference vary by band (licensed/unlicensed, legacy/newly reformed) and type of use/users (primary/secondary, overlay/underlay), it is reasonable to expect that the enforcement mechanisms may need to vary as well.\ud \ud In this paper, we present a taxonomy for evaluating alternative mechanisms for enforcing interference protection for spectrum usage rights, with special attention to the potential changes that may be expected from wider deployment of Dynamic Spectrum Access (DSA) systems. Our exploration of how the design of the enforcement regime interacts with and influences the incentives of radio operators under different rights regimes and market scenarios is intended to assist in refining thinking about appropriate access rights regimes and how best to incentivize investment and growth in more efficient and valuable uses of the radio frequency spectrum