Aaron L. Nielson

Volume 71, Issue 5, 1207-1224

Stable law is valuable, yet also remarkably lacking in our nation’s internet policy. Over the last two decades, the Federal Communications Commission (FCC) has charted a zigzagging course between heavier and lighter regulation. Last year, the U.S. Court of Appeals for the District of Columbia Circuit largely upheld the agency’s latest shift—this time toward deregulation. But in 2016, that same court upheld the agency’s shift in the opposite direction. And to top it all off, some predict that after political control of the White House shifts, the FCC may again reverse course and reinstate a policy similar to what the FCC has recently overridden. The upshot of this series of policy reversals is that it is difficult for anyone to make long-term investment decisions premised on any particular internet policy because that policy may not have a long shelf life. This makes it harder for the private sector to plan and for the FCC to encourage investment.

This Essay, however, is not about internet policy. Rather, it uses this example to examine stickiness more broadly, as well as whether and how that stickiness can or should be increased. To the extent, for instance, that we believe that greater stability is sufficiently valuable, which is debatable, it may make sense to revisit aspects of administrative law that make it relatively easy for agencies to reverse course, including adding more procedural steps or requiring better explanations to change policy. Ultimately, however, administrative law likely will not be able to create stability for controversial, highly-salient issues. When it comes to achieving the social benefits of stability, rulemaking is a poor substitute for legislation.