Welcome to the Ad Law Reading Room, a new series here at Notice and Comment that will highlight recent scholarship in administrative law and related fields. Today’s article is “Executive Capture of Agency Decisionmaking” by Professor Allison M. Whelan, which was recently published by the Vanderbilt Law Review and posted to SSRN. Here is the […]
As readers are no doubt aware, last week the Supreme Court invalidated the Trump administration’s rescission of the DACA program. In this post, I want to examine an argument that seemed not to matter to the decision, though arguably the Chief Justice implicitly rejected it. The argument holds that an agency can rescind (or decline […]
The House of Representatives on Wednesday passed the Save the Internet Act of 2019. In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]
In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]
Back in February 2015, in the same meeting at which the FCC reclassified broadband providers as Title II common carriers, the Commission also approved an order preempting certain state laws restricting municipal broadband providers. In June, the D.C. Circuit upheld the Commission’s Title II reclassification. Yesterday, the Sixth Circuit vacated the muni broadband order. A […]
I wanted to follow up on Aaron Nielson’s great post about the D.C. Circuit’s long-awaited net neutrality opinion with a couple of related thoughts. (I saw, as I was writing this post, that Professor Daniel Lyons also has a post up on the Volokh Conspiracy touching on similar points.) For one, it’s interesting how Judge […]
When I first came across the name Merrick Garland it was not in the context of his role as a judge on the D.C. Circuit. Rather, the Merrick Garland I came across while researching my student Note was the author of Deregulation and Judicial Review, 98 Harv. L. Rev. 505 (1985). Published when Garland was […]
Last week, the Federal Communications Commission announced that it would soon release an NPRM on consumer privacy. According to the Commission’s “fact sheet,” the Notice will propose a number of requirements on broadband Internet Service Providers, including an obligation not to share customer information with non-affiliated services without first obtaining the customer’s express consent. I […]
As Chris Walker noted recently on Twitter, the latest issue of the Administrative Law Review was kind to Notice and Comment bloggers. My own contribution has to do with a new basis for the FCC’s jurisdiction over Internet Protocol-based networks and services. And that basis is not Title II of the Communications Act, which has […]
In non-net neutrality telecom news, last week saw the announcement that Comcast has ended its $45 billion bid for Time Warner Cable. The announcement came after government officials met with Comcast executives and expressed their opposition to the merger. For their part, FCC staff members were reportedly prepared to refer the merger to an FCC […]
Now that the FCC’s Open Internet/Title II Reclassification Order has finally arrived (along with the inevitable lawsuits), I thought I would do a brief addendum to my prior post on the various legal challenges confronting the FCC’s plan. (For Gus Hurwitz’s response to that post, and my reply, see here and here.) One thing my prior […]
It’s nice to have a level-headed debate on the legal arguments at play in the FCC’s upcoming reclassification of broadband ISPs, an issue that often generates more heat than light. And for what it’s worth, I think Gus Hurwitz and I agree on a lot. In particular, I agree with him that a skeptical court […]
It’s an exciting time for communications law. Later this month, the FCC is expected to reclassify broadband ISPs like Comcast and Verizon as “telecommunications carriers” subject to the requirements contained in Title II of the federal Communications Act. This action follows on the heels of President Obama’s November plea for reclassification. Supporters of the FCC’s […]