Technically Legal

3 Comments on “Episode 49: Alphabet Soup”

1. Graziella says:

   May 14, 2010 at 8:49 pm

   Good episode guys! I understand why people are talking about the FCC’s recent activity and the net neutrality issue, given the potential impact, but as far as legal arguments that can be made, it seems like a fairly open and shut case. Sure, its dramatic to see the court smack down an agency like the FTC especially in this day and age, but if the FTC wants to regulate in this area administrative law seems to be on their side. If they reclassify under Title II, how will their authority even be in question given Chevron and how rational it seems (given my limited knowledge of the telecom act) to have broadband under Title II? I don’t really see where the panic is coming from, but maybe I’m missing something, since I’ve been hearing a lot of people talking about this issue not being entirely settled. While it does seem counter-intuitive for a lot of people to allow agencies to ‘change their minds’ in what seems like a strategic or even disingenuous manner, basically Chevron lets them do just that. I really doubt courts are going to step to the FCC once they ground their authority under Title II, people (ISPs) will probably challenge it, but it doesn’t seem like they will have a legal leg to stand on unless they can somehow prove Congress clearly didn’t want the FCC to have the authority to regulate the internet in this fashion…which seems like it would be pretty hard.
   • David O'Brien says:

     May 20, 2010 at 1:01 pm

     Thanks for the comments. You raise some very valid points on why reclassification shouldn’t be such a big deal.

     One aspect that I don’t think we covered is the FTC’s interests in broadband. Both the FTC and FCC are vying for authority over market participants, but they have rather divisive opinions on how regulation (or lack thereof) should be used. On one hand, you have the FCC, who apparently wants to impose regulations implementing a form of net neutrality on ISPs now. And, on the other, you have the FTC who believes that a market free of regulation is a better approach because there is no current evidence of consumer harm. The Washington Post had had some interesting articles and quotations from FTC employees on this (late April/May 2010).

     The FTC doesn’t have the express authority yet (as far as I know), but there is a budding bit of legislation that’s part of a financial overhaul bill that will grant them additional authority over ISPs. So, in this regard, I think there is quite a bit of drama going on at the FCC given the ruling in the Comcast case and the following statement about reclassification.

     We’ll just have to wait and see what happens with this FTC bill and how that might implicate the FCC’s ability to regulate. Nonetheless, I think this is what is underlying much of the public concern. The financial stakes may well be outcome-dependent for companies in the broadband market too.
2. Graziella says:

   May 20, 2010 at 6:20 pm

   Thanks again for the info on the difference of approach between the FTC and the FCC. And somewhat appropriately, given the title of the episode, I just realized I jumbled my federal agencies, I meant FCC the entire time, I swear!