Tough Act to Follow: The Failure to Follow the Telecommunications Act of 1996 Book

	Acknowledgments	xi
	Introduction	1
	The Natural Experiment of the Telecommunications Act of 1996	2
	Structure of the Book	3
1	Separation of Powers and Dashed Expectations	5
	History of the Separation of Powers	6
	The Other Benefits of Separation of Powers	8
	The Rule of Law	9
	Reinforcement of Democratic Institutions	10
	The Efficiency of Governmental Services	10
	Isolated Agencies without Separation of Powers	11
	A Charmed Life	12
	Separation of Powers Matters, Even in Isolated Agencies	13
2	The Ancestry of the FCC	15
	Expansive Power under the Communications Act of 1934	15
	Concentration of Powers and the FCC	17
	The FCC Evolves over Time	19
	Congress Considers Revising the Communications Act of 1934	20
	The Consent Decree Problem	21
	The Unending Bureaucracy Problem	23
	The Technology Retardation Problem	24
	The Antitrust Problem	25
	The False Scarcity Problem	26
	The Cost-Accounting Problem	27
	The Cable Problem	27
	The "Public Interest" Problem	29
	Subtle Problems	30
3	The Telecommunications Act of 1996	31
	Solutions	31
	February 8, 1996	33
	A Triumph of Individuals over Government	34
	August 8, 1996	35
	No Branch of Government to Discipline the FCC	36
	The Bubble Bursts	37
	Causes of Boom and Bust	39
	Benign Explanations	39
	Bad Behavior	40
	Bad Implementation of a Law	41
	The Core of the Problem	42
4	The Courts and the Administration Will Not Discipline the FCC	45
	The Supreme Court Holds That Congress, Not Courts, Must Discipline the FCC	46
	Iowa Utilities Board Sanctions FCC Discretion as Residual from the Communications Act of 1934	47
	Chevron Deference Reinforces Combined Powers of Government	49
	Despite the Courts, the FCC Limits Speech	53
	The Administration Will Not Interfere with the FCC	54
	The FCC Is Left Alone to Divine Congressional Intent	55
5	Congress Will Not Discipline the FCC	59
	Congress Is Ill Equipped to Discipline the FCC	59
	Congress Has Limited Means to Ensure That Its Intent Is Carried Out	60
	The FCC Provides Plausible Deniability to Congress	66
	The FCC Cannot Discipline Itself	67
6	Individuals Do Not or Cannot Discipline the FCC	69
	Problems Associated with Insulation from the Public	70
	Unresponsiveness to Citizen Concerns	71
	A Hidden Tax	72
	Merger Reviews	73
	The Exception That Proves the Rule	74
	Combined Powers Make Individuals Reluctant to Take Disputes to the FCC	76
7	Sloppy Rulemaking	78
	Rules That Kept Power at the FCC for Enforcement and Adjudication	79
	A History of Written and Unwritten Rules Facilitates Sloppiness	80
	The "Public Interest" as Authority	81
	Hidden Taxes	82
	A Poor Track Record in Court Has Done Little to Improve Rulemaking	84
	Consequential Costs for Both Businesses and Consumers	89
	Combination of Powers and Sloppy Rules	91
8	Unpredictable FCC Rules and Communications Law	92
	Uncertainty and Delays from Sloppy Rules	93
	Uncertainty of Enforcement	98
	Uncertainty of Adjudication	99
	Loss of Valuable Time	100
	The Costs of Negotiations and Settlements as a Result of Uncertainty	102
9	An Appearance of Discriminatory Treatment by the FCC	104
	Discriminatory Enforcement	105
	Methods of Detection	105
	Standards of Enforcement	108
	Discriminatory Adjudicatory Proceedings	109
	Merger Review Activities at the FCC	109
	BOC Section 271 Reviews	116
	Waivers	118
	The CALLS Proceeding	119
10	The Miracle of Compound Interests	125
	Auctions	126
	Peculiar Financing	127
	The C Block	128
	A New FCC-Where There's a Will There Must Be a Way	130
	The Market Turns	132
	Eureka!	133
	Regulatory vs. Fiduciary	135
	Collateral Damage	136
	Re-auction	138
	The D.C. Circuit Court Opinion	141
	Welcome to the Sausage Factory	142
	The Market Collapses Again	143
	Conclusion	145
	Results of the Natural Experiment	146
	A Cautionary Tale	147
	Failure to Separate Powers	148
	How to Improve the Situation	150
	Appendix	152
	Notes	158
	Index	181
	About the Author	193