Public participation and agency discretion in rulemaking at the Federal Communications Commission

Abstract

In recent years, many practitioners, policymakers, and scholars have embraced participatory politics in communications policymaking at the Federal Communications Commission (FCC) with the expectation that mass involvement by the public will—and should—influence regulatory outcomes. However, calls for participation may not be sufficient; a commitment to public-spirited decision making among agency officials is also needed alongside procedural safeguards for participation. The following analysis uses a Habermasian framework to move beyond participatory politics and advocates for a deliberative understanding of the role of the public and policymakers in producing legitimate outcomes. Looking at legal and legislative history of the Commission and of administrative procedure more generally, the article reconsiders the value of agency discretion and turns attention to the importance of public participation in debates about communications regulation outside the rulemaking system. If members of the public generate, circulate, and make audible their opinions in a public sphere and agency officials are open to and active listeners of a public sphere, agency discretion can guide officials towards public-spirited rather than narrowly interested decisions. Overall, Habermas's model suggests that policymakers and public coproduce legitimacy in a process that is doubly challenging but arguably more profound