By Grace Galvin, Washington Legal Foundation*
Technology is constantly changing, and the Federal Communications Commission (FCC), like everyone else, feels the need to keep up with the times. The agency’s recent efforts to maintain its role as the core regulator of the communications sector, however, has gotten it into a bit of trouble.
Washington Legal Foundation brought a panel of experts together on October 20, 2016, including FCC Commissioner Ajit Pai, former FCC Commissioner Harold Furchtgott-Roth, and administrative law attorney Brett Shumate of the Wiley Rein LLP, to discuss FCC’s increasing tendency to overreach the limits placed on it by the federal Telecommunication Act and the US Constitution.
Commissioner Pai looked back on recent years and said FCC has gotten into trouble with the courts “by forging ahead with what it considered to be good policy, regardless of legal consequences.” Federal circuit courts outside of D.C. have been quick to admonish the FCC for overstepping its statutory and constitutional boundaries. Continue reading
The Federal Communications Commission (FCC) announced on August 29 that it will not be appealing its loss in the US Court of Appeals for the Sixth Circuit in Tennessee v. FCC. The August 10 decision held that FCC lacked the authority under Telecommunications Act § 706 to preempt state limits on municipalities’ offering of broadband services. Washington Legal Foundation supported the Petitioners in the case with an amicus brief on which we represented former FCC Commissioner Harold Furchtgott-Roth.
FCC argued that § 706 granted the Commission broad public-interest authority to dictate how states regulated the activities of their own local towns and cities. Tennessee and North Carolina both permit municipalities to offer government-owned broadband services, but they limit the offering of those services to the municipalities’ geographical borders. The Commission acknowledged it could not prohibit states from banning municipal broadband, but asserted that once states allowed such services, § 706 empowered FCC to preempt state policies that stood “as a barrier to infrastructure investment and broadband deployment.”
As former Commissioner Furchtgott-Roth and his Hudson Institute colleague Arielle Roth explained in an August 18 WLF Legal Pulse post, “The Sixth Circuit correctly rejected FCC’s basis for preempting the North Carolina and Tennessee statutes, stating that nowhere in § 706 did Congress indicate an intent to preempt internal state laws governing broadband deployment.”
The extent of FCC’s overreach was made manifest last November when the Department of Justice declined to sign FCC’s Sixth Circuit brief. Experts noted at the time that DOJ’s absence conveyed a not-so-subtle message to the Sixth Circuit. The Sixth Circuit sent an even clearer message to FCC with its August 10 decision, one that the Commission finally appears to have received.
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
By John Easter, 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
*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