Legal Commentary

Harold Feld Doesn't Just Explain FCC Law on a Difficult Net Neutrality Question, He Makes It Funny

By Professor University of Miami School of Law

It is not easy to explain the debate over whether — were the FCC to reclassify broadband as a Tittle II service — Sec. 201 and 202 of the Communications Act of 1934, as amended, would then permit or require the agency to allow tiered services or whether net neutrality would/could survive. It's complicated, but grandmaster telecoms lawyer Harold Feld not only explains it in plain English, but manages to be really funny too. I hope he'll forgive my reprinting one of the better punch lines.

Wetmachine » Tales of the Sausage Factory » Sorry AT&T, Title II Would Not Require The FCC To Allow Paid Prioritization. So lets pretend we’re living now in the happy land where Genachowski has reclassified broadband access as a Title II service and the FCC is now trying to decide what actual rule to adopt for network neutrality. AT&T will show up with its precedents and say “Yo! FCC! See all these precedents? That means you need to let me do paid prioritization.” And I will show up and say “Yo, FCC, AT&T’s precedents are not in the least relevant to the actual technology or market situation applicable here. My precedents, requiring a complete ban on paid prioritization as inherently unfair and/or too hard to monitor for fairness are much more relevant. And besides, allowing paid prioritization would be bad policy.” (I expect to have more of them if we ever reach that point. Remember, this is a blog post.) Bob Quinn and his buddies, being good lawyers, will come back and reply: “Harold is so wrong. Not only are our precedents directly applicable and relevant, but his are utterly irrelevant and totally not applicable. And besides, Harold’s rule would be bad policy.” And we’ll go back and forth and eventually the FCC will make a decision, one of us will lose and will file an appeal, where we will get to argue whether the FCC did a good job and explained itself in a coherent way given the deference the court is supposed to show the agency. Unless the DC Circuit gets ahold of it, in which case they will just ask which side AT&T is on and go with them.

That last crack is maybe (maybe) less then utterly fair, but I was very glad I wasn't drinking something while I read it.

Full post as published by Discourse.net on October 08, 2010 (boomark / email).