Sixth Circuit Protects Federalism from an Overreaching Federal Communications Commission

harold_frRothGuest Commentary

By Arielle Roth and Harold Furchtgott-Roth, The Hudson Institute*

With the U.S. Court of Appeals for the DC Circuit granting it unprecedented authority over broadband companies in its June 14, 2016 network neutrality ruling, the Federal Communication Commission’s (FCC) regulatory authority over the internet is on the rise. However, a ruling last week by the Sixth Circuit, which overturned an FCC attempt to interfere with the internal affairs of two states’ broadband markets, reminded the Commission that there are limits to its power under the Telecommunications Act of 1996. Consistent with an amicus brief filed in the case by Washington Legal Foundation (and on behalf of one of the authors of this post), the court held that FCC that may not act in contravention of federalism principles and the rule of law. Continue reading

Game, Set, Match: DC Circuit Makes Final Ruling in “Tennis Channel v. FCC”

tenniscourtBy John English, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

The United States Court of Appeals for the DC Circuit has likely brought an end to a seven-year-long dispute involving Tennis Channel, Inc., Comcast, and the Federal Communications Commission (FCC).  The July 5, 2016 decision in Tennis Channel, Inc. v. Federal Communications Commission is the DC Circuit’s second consideration of the petitioner’s claim that Comcast discriminated against Tennis Channel in favor of affiliated networks when determining channel offerings to its cable customers. Continue reading

Proposed FCC Privacy Rule Takes Unauthorized Aim at ISPs and the First Amendment

FCC*Jared McClain, WLF staff attorney, contributed to this post.

On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading

FCC Displays Troubling Proclivity for Enforcement over Rulemaking with Wi-Fi-Blocking Actions

FCCIn 2015, the Federal Communications Commission (FCC) penalized numerous private companies that have allegedly blocked Wi-Fi hotspots. The problem is, FCC hasn’t bothered to promulgate any regulations that detail when such blocking is unlawful. Instead, the Commission bases its claim of authority on a 1990 statute meant to protect radio stations from malicious interference. FCC’s wielding the heavy hand of enforcement actions for Wi-Fi blocking is troubling in principle and unlawful in practice.

With no rule on point, the Commission has failed to provide businesses with fair notice. Further, FCC’s attempt to stretch the applicability of an off-point regulation could have widespread consequences if followed to its logical conclusion. As a result, the time for FCC to issue rules on Wi-Fi blocking through notice-and-comment rulemaking is now well overdue. Continue reading

FCC Should Not Remain Silent on Berkeley’s Junk-Science Wireless Warnings

harold_frRothGuest Commentary

By Harold Furchtgott-Roth and Arielle Roth, The Hudson Institute*

In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.

The ordinance requires that cell phone retailers inform customers of the following:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.

The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort. Continue reading