Professor Philip J. Harter
This is an open book, open notes, open library open virtually everything exam. The one absolute exception to this vaunted openness: you may not discuss the exam with any other person, in or out of the class (rumors do have a way of floating around, and remember that only hurts the one providing the information). Please identify your paper only by your student ID number. Do not attach the certificate to your exam but rather hand it in separately. Your exam and certificate are due in Room 203 by 4:30 on the day you pick up the exam. No grade will be given without a completed Certificate.
I certify that I did not speak with anyone, whether or not in the Administrative Law Class, about the substance of the exam.
Printed Name __________________________
Professor Philip Harter
Identify yourself only by your Student ID Number. Your responses should be typed, double spaced in at least 11 point type with 1" margins. You should be able to respond adequately in 10 pages, but do not write more than 15. Answers should directly and succinctly identify the issues involved, briefly discuss the principles of Administrative Law in each, and develop an outcome or answer to the question; the reasoning process is far more important than the conclusion. Wandering, unfocused responses indicate you are lost and grasping, so avoid the temptation. You certainly do not need to cite cases, although they can help identify a principle C for example, Chevron deference carries a lot of meaning that would otherwise have to be explained.
Assume for purposes of this exam[*] that the mood in Congress towards the Federal Communications Commission has become a bit nasty. Congressmen and Senators alike have denounced the FCC as a tool of big business for its new rule on allowing companies to own a virtually unlimited array of media outlets, its handling of the "do not call registry," and the lack of tangible progress on bringing High Definition Television to America's living rooms. The final straw came when a rumor circulated that the Commission was about to remove all restrictions on TV content, freeing the way for X rated movies and language of any sort to be broadcast at any time. Congress thought it was time for it to take back control of the airwaves. As a result, it enacted the "Congressional Responsibility in Communications Act." It provides in part: "No rule issued by the Federal Communications Commission shall be effective until approved by Congress." The Act continues, "Congress shall vote on the rule, without amendment, within 60 days of its publication in the Federal Register." If Congress approves the rule, it is presented to the President for signature; the legislation is silent as to what happens if Congress does not approve the rule.
And so the fun begins:
1. Assume you are the General Counsel of the National Association of Broadcasters, the trade association of the TV industry. The president of NAB has just come to you and reported that the Board of Directors is up in arms about this restriction since the NAB has a good working relationship with the FCC. He wants to know if this scheme hatched by Congress is constitutional, hoping of course that you will tell him that it is not. What do you tell him?
Not surprisingly, the FCC is also outraged at this denunciation of its integrity. The chair of the commission and the NAB president therefore met over lunch at one of Washington's fancy restaurants to decide what they should do about it. Together they decided on a course of action to by-pass the Congressional restrictions. To implement this plot, the next week the American Association of Authors (a trade group of screen writers), at NAB's urging, filed a motion to intervene in the FCC proceeding for the routine renewal of the broadcast license of the TV station in Columbia, MO that had been pending for six months. The AAA alleged that the station had been unduly restrictive in what it broadcast and that this amounted to censorship; it therefore opposed the granting of the license unless the station agreed to not restrict content or language at any time. The FCC immediately announced that as part of the licensing proceeding it would conduct a broad inquiry into content and language and published a Notice in the Federal Register inviting anyone who was interested to submit their views for the FCC's consideration. The Commission issued a "Policy Statement" at the conclusion of the proceeding that said in the future it would not approve a broadcast license for any station that "censored" content or language. It also approved the application of station, but said that it was doing so without reference to its new policy.
This of course raises more questions:
2. Was the lunch between the chair of the FCC and the president of the NAB legal? Explain. Use just the general principles of administrative law; since we did not discuss the details of the various conflicts of interest or ethics laws, which may well be relevant, do not worry about them here.
3. Given the general principles of administrative law, was in legal for the FCC to develop its policy in this way or are alternative procedures required?
4. Applying those same general principles, do you think the chair of the FCC and the president of the NAB will succeed in their machination to by-pass the Act? That is: Does the Act apply to this decision to remove restrictions? Will the Act stop the FCC from implementing its new found policy without Congressional approval? Explain.
5. Once this sordid state of affairs gets to the Supreme Court for review, how much deference will the Court likely grant the Policy Statement?
[*] Note that this fact pattern is not true!