Author Archive | Stuart Benjamin

Should the FCC Actually Want Review of the Net Neutrality Opinion?

Let me go beyond yesterday’s post to ask a related question. The Commission may well file a petition for rehearing and/or certiorari in yesterday’s net neutrality decision.  But if I were the FCC’s general counsel, would I actually want review of that decision? I think the answer is probably no.

Here is how I would analyze it. The opinion interprets the Commission’s section 706 authority broadly.  The Court found (and Judge Silberman bemoaned in dissent) that section 706 gives the FCC authority to promote broadband deployment via regulation, and that the FCC can construe such authority to “encompass[] the power to regulate broadband providers’ economic relationships with edge providers if, in fact, the nature of those relationships influences the rate and extent to which broadband providers develop and expand their services for end users.” As Judge Silberman noted, that is very broad authority.  And, as Geoffrey Manne and Berin Szoka from Tech Freedom discussed yesterday in decrying the majority opinion, section 706 applies to “advanced telecommunications,” which covers a wide range of services. With a single opinion, the FCC’s regulatory authority to implement a wide range of regulations has been placed on strong footing. That is a big deal. The FCC has relied on 706 in other Internet-related contexts, such as its order restructuring the universal service fund to support broadband-capable networks, and it will assuredly rely on it more in the future. On the assumption that I as the FCC general counsel would prefer the Commission to have authority (whether or not it chose to exercise it), this interpretation would make me very happy. (I could imagine being a general counsel to an FCC chair who wanted the FCC to have less regulatory authority and therefore might not like this interpretation of section 706, [...]

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Winning and Losing in the Net Neutrality Decision

There is lots to chew on in the D.C. Circuit’s net neutrality opinion issued today. (Full disclosure: I worked on the order and legal defense when I was at the FCC, so apply whatever filters you deem appropriate.)  There are a ton of interesting administrative law issues, which I plan to write about later.

But right now I will take a longer view. I am reasonably confident that if I were a member of Verizon’s board of directors and someone could have accurately predicted the content of today’s opinion before Verizon filed its lawsuit, as a director I would have said, “Then let’s not file the suit and let’s hope no one else does, either.”

What? You say.  Didn’t Verizon win? Yes, but there are three caveats.  First, and least importantly, the nondiscrimination rule applies to wireline Internet broadband providers but never applied to mobile Internet providers, so vacating that rule doesn’t affect mobile providers (like Verizon Wireless). Second, and more importantly, as co-blogger Jonathan notes, the D.C. Circuit opinion suggests the permissibility of a different form of “no-blocking” rule (one that the FCC’s general counsel at oral argument endorsed and claimed was the no-blocking rule the FCC in fact promulgated, but the D.C. Circuit read the rule differently).  But third, and most importantly, the D.C. Circuit majority reads section 706 of the Telecommunications Act of 1996 as providing significant regulatory authority to the FCC.  This is the most significant aspect of the opinion, in my view.  And the authority seems pretty broad.  Here is what Judge Silbermann said in dissent about the interpretation of section 706’s authority:

[The FCC] claims it must regulate broadly, so as to “protect[] consumer choice, free expression, end-user control, and the ability to innovate without permission,” 25 F.C.C.R. at 17949 ¶ 78, which

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The Net Neutrality Oral Argument

This morning the DC Circuit heard oral argument in the facial challenge to the FCC’s net neutrality rulemaking (which, full disclosure, I worked on when I was at the FCC). The most extensive writeup I have seen about the oral argument is here (note that the author, Harold Feld, is a strong supporter of the regulations). Everyone went long, and the argument took two hours. As to the outcome, Judge Tatel is likely the key vote (Judge Silberman seems inclined to invalidate the entirety of the rulemaking, and the quieter Judge Rogers seems much more sympathetic to the FCC’s arguments than Tatel was). Tatel telegraphed his inclinations reasonably clearly — that the FCC’s prohibition on unreasonable discrimination is invalid because it treats broadband Internet access providers as common carriers, but the prohibition on blocking is permissible. What this would mean, as Judge Tatel summarized on a few occasions in the argument, is that Internet access providers (e.g., Verizon) could not charge edge providers (Google was often used as an example) for their use of Verizon’s regular broadband Internet service, but could demand payment for faster service. That is what the “no blocking” rule provides: an Internet access provider cannot charge websites for access to the provider’s customers as part of the provider’s standard service, but it can charge websites for access to its premium service. The prohibition on unreasonable discrimination would cast doubt on charging for premium service (the fear being that this will lead to a two-tier Web, with mediocre speeds for companies that don’t pay, or aren’t affiliated with, Internet access providers, and fast speeds for the favored edge companies). So, if the position Judge Tatel favored were to prevail, neither Verizon nor the FCC would be happy, but edge providers would know that they couldn’t be charged [...]

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Agencies and Legislative/Judicial Power

City of Arlington v. FCC has some interesting nuggets.  For instance, Scalia’s majority flatly states: “Make no mistake—the ultimate target here is Chevron itself,” though the dissent disclaims any such intent.  But I want to flag here another iteration of debates over how to characterize agencies’ power.  Roberts’ dissent says that

Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.

Scalia’s majority opinion responds that

the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” The former is vested exclusively in Congress, U. S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, §1, cl. 1.

Note that Roberts is saying that “as a practical matter” they exercise legislative and judicial power, and Scalia is saying that as a constitutional matter they don’t. But perhaps Roberts has come to the conclusion that, as a constitutional matter, agencies exercise these powers as well. Justice Stevens, after all, said as much in his concurrence in Whitman v. American Trucking Associations, Inc. [...]

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Moderate Senate Republicans Fall Off Their Own Cliff

The most commonly used scores for ideological distance are DW-Nominate scores, based on representatives’ actual votes. These measures reduce various flavors of “liberal” and “conservative” to a single metric, but they are the scores most widely used and trusted by political scientists and political commentators because they measure virtually all the actual votes in a careful and rigorous way. As many people have noted, there used to be lots of ideological overlap between the parties, and lots of moderates in both parties, but there is less overlap, and in particular there are fewer moderate Republicans. I decided, like some others, to look at this in light of the upcoming Senate. Beyond that, it is interesting to compare it to the Senate from 10, 20, and 30 years ago (the 108th, 103rd, and 98th Senates), so I use the DW-nominate constant scores, which provide comparable scores among the members of different Congresses. The numbers are striking, particularly on the Republican side. Just ten years ago, in the 108th Senate, there were 10 Democrats with DW-Nominate scores between −.3 and -.2 (the more negative, the more liberal), and 8 Republicans with DW-Nominate scores between .2 and .3 (the more positive, the more conservative). And there were 6 Democrats between −.2 and 0 and 7 Republicans between 0 and .2, which is probably a better reflection of what we mean by truly moderate Senators (again, with all of this measuring the distance of Senators from their colleagues past and present based on their voting records).

In the upcoming Senate, we have to do some extrapolation because we don’t have DW-Nominate scores for those who are new to the Senate (and the DW-Nominate constant scores for the House cannot simply be applied to the Senate). But [...]

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Litigation Strategy and Coalition to Defend Affirmative Action v. Regents

I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.  Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses.  My guess is that they get maybe two votes on the Supreme Court.

When Ted Olson and David Boies brought a challenge to California’s Proposition 8 against gay marriage, lots of gay marriage supporters said the litigation was a mistake, because it was too soon.  I don’t recall seeing the same pushback against this Michigan litigation (that is, I don’t recall advocates of affirmative action saying that this litigation was too soon).  I suspect the reason for this difference is that gay marriage advocates believe that time is on their side and affirmative action advocates don’t. But if the groups spearheading the Michigan litigation believe they’ll be in the same position, or in a weaker position, in the future, that still doesn’t explain bringing this litigation if they don’t think they’ll win in the Supreme Court.  So I’m guessing that the Michigan groups bringing this litigation think they will win in the Supreme Court, or they think that the litigation will bring them other benefits (like moving public opinion in their favor) that will outweigh the costs of losing in the Supreme Court.  I’ll take the bet against both propositions. [...]

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Supreme Court Strategery

An article I coauthored came out in the Journal of Legal Analysis that might be of interest, and that I’m pretty jazzed about.  Here is the abstract:

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters’ negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.

In other words, building a broader coalition – either ideologically or numerically – is associated with fewer negative reactions.  A simple example: array the Justices on an ideological spectrum from 1 to 9 (it doesn’t matter for these purposes whether the most conservative is 1 or 9).  Justices 2, 3, 4, and 5 have joined a draft opinion, and Justice 1 has written a memo indicating that he would join if the opinion was changed in some specified ways (this is standard practice in the [...]

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More on the judicial smackdown: You’re the one who engaged in misconduct!

District Judge Robert Jones, who enjoined Nevada’s “None of These Candidates” as likely unconstitutional (see my post from a few hours ago), responded to the 9th Circuit’s order and Justice Reinhardt’s concurrence in particular here.  I agree with the commenters that he was probably better off remaining silent, since he does not justify his delays in dealing with this expedited request for an injunction.  But I also note that he accused Judge Reinhardt of breaking the rules.  Judge Jones says:

The undersigned was quite surprised when Judge Reinhardt contacted my Chambers through the Ninth Circuit Clerks Office and requested early entry of the order granting preliminary injunction, in light of a preliminary hearing date set by himself on the Defendants Emergency Motion to the Ninth Circuit for Stay Pending Appeal. I am not even sure if Judge Reinhardt was on the motions panel for the month of August, 2012, which panel is designated each month to hear all early motions in a case. Such contact for the purpose of influencing the lower court’s decision and earlier entry of its order, in order to establish appellate jurisdiction is an inappropriate judicial activity.

Translation: “You say I engaged in misconduct?  I say you engaged in misconduct!”

And for good measure, Judge Jones ends by saying: “Judge Reinhardt’s separate decision to impugn the integrity and motivation of the undersigned judge, together with his contact to Chambers through the Ninth Circuit Clerks’s Office, was an example of assumption of power by one individual which is not acceptable in our judicial system.”

I have a feeling things may be a bit frosty the next time these two cross paths. [...]

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“His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots.”

I am finally returning to blogging a bit.  From the “judicial smackdown” files: A week ago, a district judge agreed with arguments that Nevada’s 36-year-old statute requiring a “None of These Candidates” option on the ballot for statewide elections is likely unconstitutional and issued an oral preliminary injunction.  That’s pretty remarkable – on what basis does he think there is a good argument that this statute is unconstitutional?  We don’t know, because he didn’t issue a written opinion.  His failure to issue a written opinion is also pretty remarkable, because the state made clear (repeatedly) that September 7 was the deadline for it printing ballots.  And lest you think he had no time because the case had just come in the courthouse door, he had been sitting on the request for a preliminary injunction (which repeatedly requested expedited treatment) since mid-June.  Anyway, the 9th Circuit has responded with its own remarkable action.  Two days ago a unanimous three judge panel (including Reinhardt from the left and Bea from the right) granted Nevada’s emergency motion to stay the district court’s injunction.  More striking is Judge Reinhardt’s concurrence, which states flatly (and repeatedly) that the district judge’s actions could be explained only as an attempt at evading appellate review, by issuing an oral order shortly before September 7 and the written opinion afterwards, at which point the ballots would have been printed.  The quotation in the title of this post is representative of the harshness of the concurrence.  Essentially, Reinhardt is accusing the district judge of bad faith and malfeasance.  I must say that I have had a hard time coming up with a persuasive charitable explanation for the judge’s timing (maybe it’s too hot in Nevada to do much over the summer?).  But that is one harsh concurrence. [...]

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Did Newt Gingrich Break the Law with his Bolton Promise? No.

Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so.  I think they are wrong — indeed, pretty clearly wrong.  As Mitu Gulati and I pointed out in a paper entitled “Mr. Presidential Candidate: Whom Would You Nominate?”, the relevant statute is ambiguous and, more importantly, applying the statute to a public promise like this one would violate the First Amendment.

And, as the title of our article suggests (and as we discuss at some length in the article), a presidential candidate identifying whom he would appoint is valuable to voters and should be encouraged.  Indeed, in this specific case Gingrich has conveyed useful information to voters.  Newt (and all other presidential candidates), please tell us more about whom you would nominate!

For what it’s worth coconspirator Eugene provided us with excellent comments on our draft and disagreed with our policy prescription, but I don’t recall him disagreeing with our legal analysis on this point (though Eugene can set me straight if I’m misremembering).

The statute, 18 U.S.C. § 599, provides in relevant part:

“Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.”

As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is “procuring support in his candidacy.” Is this trigger procuring support from the public for his candidacy or instead procuring support from [...]

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Silberman’s Majority Opinion as Template?

The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits).  Silberman’s opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity from inactivity, but such a distinction is novel and not grounded in doctrine; and that “Appellants’ view … expresses a concern for individual liberty that seems more redolent of Due Process arguments.”  Indeed, I will make a bold and perhaps foolish prediction: if Scalia is assigned the majority in the health care act case, my guess is that it will bear a considerable resemblance to the Silberman opinion.  Let me add that I think Scalia or Kennedy is the most likely author of the majority in the case.  And, yes, I do think Scalia (and Kennedy, for that matter) will vote to uphold the act. [...]

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Expanding Obesity

With this blog post I’m returning to blogging after a long hiatus.  This one is on a topic that is not particularly relevant to my interests, but I find it remarkable: According to a new report on obesity in the U.S., the state with the lowest obesity rate today (Colorado) would have had the highest obesity rate in 1995.  And we are long past the point when we switched from the term “adult-onset diabetes” to “Type 2 diabetes,” in significant part because the disease has become so common in children.  One other tidbit: for most of human history, poverty has been positively correlated with being underweight.  Now poverty is positively correlated with obesity.  As you move down the income scale, obesity increases.  The same, by the way, is true of education (less is correlated with more obesity).  See pages 20-21 of the report.  Whatever the causes are, the results really startling.  I suppose the only good news is, to paraphrase Herbert Stein, this rate of increase cannot go on forever: at this rate, we’d hit obesity rates of 110% of the population in a couple of generations. [...]

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FCC v. Fox and the Demise of Local Broadcasting:

I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting.

Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court’s decision in FCC v. Fox affirms indecency regulations that make life worse for local stations.

Much ink has been spilled about the possible demise of print newspapers. Local broadcasters have been a bit better off. Their viewership has long been declining, but they had an ace in the hole – coverage of local events. If people wanted to witness live local events, they needed to watch a local television broadcaster. But that has started to change. Viewers, and thus advertisers, are being siphoned off by websites covering local issues and new local offerings from cable providers.

And now some local stations are halting coverage of live local events out of fear of FCC indecency fines that the Supreme Court upheld in FCC v. Fox. The FCC has long emphasized the importance of helping local broadcasters, but more recently it has focused on indecency – ruling that even a fleeting expletive can subject a broadcaster to fines in the tens of thousands of dollars for each fleeting expletive.

National networks can afford tape-delay systems, but many local broadcasters cannot. The problem, as Justice Breyer noted in his dissent in Tuesday’s opinion, is that the FCC’s indecency policy “places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events.” And, indeed, some stations have responded to the FCC’s policy by ending their coverage of local live events.

Viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of [...]

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Are the markets making fun of those who attributed its fall to Obama? Or maybe it was never that simple?

A number of commentators have asserted a causal relationship between Obama’s presidency and the stock market’s decline in the past couple of months — that the market has plunged because of Obama’s plans (see a short compilation here). But wait a minute — with today’s gains, the markets are now about where they were when Obama was inaugurated (the S&P 500 is up 2% since then, the Dow is down 2% since then). For all those who were so sure that the market was down because of Obama, I’d be interested to know how they explain the upswing. I’m not holding out hope, though, that they will say either that the downswing and the upswing were caused by Obama or, more sensibly, that they were wrong to be so confident about the cause of the downswing. (Of course, the reverse could also be true — people who donwplayed the causal connection might now trumpet the upswing. But I hope they won’t be so foolish.)

Fun note: since Michael Boskin’s article “Obama’s Radicalism Is Killing the Dow” appeared on March 6, 2009, the markets are up almost 20%. Time will tell (and I’m not holding my breath, given the unpredictability of the markets), but it may be that Boskin’s pessimistic message was a perfect (reverse) signal — the exact time to buy. [...]

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Nice Guys Finish … First?

I was happily surprised to see that Michael Bennet has been tapped to replace Ken Salazar as a Senator from Colorado. I knew Michael from law school and working in DC thereafter, and he always struck me as very smart, able, and all-around impressive. What makes his appointment so surprising is that he is so tremendously … nice. People like that aren’t supposed to get ahead, least of all in politics. They’re the ones who get stepped on by the ambitious, ruthless climbers who reach the top (or so the movies suggest). In most every way Michael’s personality is totally unlike the stereotype of an average politician. For this reason, I would never have expected him to run for the Senate on his own. I am not saying that because he is nice he will be a better Senator, nor am I suggesting that anyone should support him on that basis. But I do find it striking that he was chosen. I also think it is not coincidental that he was appointed, rather than having to run for the office.

This also raises larger questions about differences between the sort of people who get elected and those who get appointed. I recall that, after a couple of scandals in Arizona (remember AzScam?) resulted in the appointment of a bunch of state representantives to replace those who were caught in the scandals, someone analyzed the appointed legislators versus the elected ones and found the appointed superior on most every metric (no, I no longer recall the details). This is most relevant (post-17th Amendment) to the selection of state officials, notably judges. The variation among states is wide, with some (e.g., Texas) electing almost everyone above dogcatcher, others relying heavily on appointments, and still others having appointees who then run for election [...]

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