Andrew Schwartzman

Opening Day at the Court of Appeals

[This article was originally published on August 22, 2018]

Aug 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision. 

The FCC's Darkest Day

Today we mark a trifecta of governmental malfeasance: last year, the FCC’s majority ignored bipartisan public support for the net neutrality protections the Commission adopted in 2015; it displayed a flawed and factually inaccurate understanding of Internet technology, and it misinterpreted U.S. communications law. Last year, Benton promised that net neutrality was not dead and predicted wins at both ballot boxes and in the courts. In November, the American public overwhelmingly backed candidates that support net neutrality.

Opening Day at the Court of Appeals

After a long pre-season in which little else happened other than setting a schedule and format for briefing, August 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision. Two groups of challengers (technically referred to as “petitioners”) filed their briefs Monday evening in the US Court of Appeals for the District of Columbia Circuit.

Net Neutrality in the Courts: Two Cases, Two Courts; The One You Have Been Following, And The One You May Have Forgotten About

After months of relative inactivity, there will soon be some important movement in litigation over the Federal Communications Commission’s network neutrality rules. The fact that there are two different cases in two different courts litigating over two different decisions is likely to cause considerable confusion in the coming weeks. On Monday, August 20, challengers will be filing their initial briefs in their appeal of the Trump Administration FCC’s oxymoronic “Restoring Internet Freedom” order.

Beware: The UHF Discount Is Rising From The Dead

[Commentary] The ultra high frequency (UHF) Discount is the zombie of media policy, likely to rise from the dead this week at the Federal Communications Commission’s April 20, 2017 meeting. The likely restoration of the UHF Discount raises interesting legal issues, since no one disputes that there the policy rationale for its adoption has long since disappeared. Those arguments will play out at the Federal Communications Commission and, perhaps, in the courts, but this post is about the colorful history of the UHF Discount and why restoring it would likely lead to vastly increased concentration of control of TV stations in this country. FCC Chairman Ajit Pai has made plain that he intends to relax or repeal almost all of the Commission’s restrictions on how many media properties a broadcaster can own or operate. However, the very first item on his list, which he has slated for expedited consideration, actually restores a very important, if seemingly arcane, provision that his predecessor had deleted - the so-called UHF discount.
[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

Why Radical Deregulation Is Happening So Fast At The FCC

[Commentary] President Donald Trump has moved quickly to use Executive Orders and other plenary powers to deliver on some of his major campaign promises on issues such as immigration, the Dakota Access pipeline and appointment of a conservative Supreme Court Justice. For the most part, however, his promised deregulatory assault on what his chief strategist Steven Bannon calls the “Administrative State” has not advanced as quickly. Hundreds of top-level positions at Executive Branch agencies remain vacant, and the process of rescinding regulatory policies can be cumbersome and time consuming. There is at least one important exception - media and telecommunications regulation at the Federal Communications Commission. Within weeks after taking office, newly-designated FCC Chairman Ajit Pai has moved aggressively and with unprecedented speed to overturn many recent FCC decisions and changed some longstanding policies. While some of these actions are more symbolic in nature, others have had immediate and significant impact. Many more such actions are likely to be unveiled in the weeks, not to mention months, to come.
[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

Broadband Over Power Lines -- We Really Mean It This Time

[Commentary] When telecom engineers are shooting the breeze, they often use the phrase "Project Angel" as a punchline. For almost 20 years, AT&T (and its predecessor company, also called AT&T) periodically announced that it was going to use revolutionary and exotic technologies to deliver high-speed wireless service that could replace (at first) copper phone lines and, later, to deliver ultra-fast broadband service. Despite big press announcements (such as these in 1997, 2000 , and 2002), Project Angel never happened. At least until now. This could be very important. AT&T is unveiling (for only the second time) yet another new wireless scheme, one which has been announced only once before. This time, it is calling the new initiative "Project AirGig," but the hype, if not the technology, is similar. Except this time, the market and the technology might actually let this happen. The telecom folks are abuzz again, because this is really audacious. The idea seems to be that AT&T would mount transmitters along electrical power lines and use the proximity to the electricity to help relay ultra high speed Internet along the rights of way. Speculation that AT&T really means it this time has been fueled by the fact that AT&T announced that it will buy FiberTower, a company that controls a large swathe of very high frequency spectrum. Keep an eye on this, because if it works, it could reduce the need for fiber and perhaps greatly reduce the cost of Internet access.

Globalstar's Christmas Present

[Commentary] On December 22, the Federal Communications Commission gave a satellite operator named Globalstar a Christmas present of sorts, along with a lump of coal. The events leading up to this action present a case study that offers insights into the physical, economic, legal, and political forces that shape telecommunications policy. Globalstar’s inability to effectuate its new venture is an object lesson for incumbent and would-be “low Earth orbit” (LEO) operators.
[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

The Trump FCC’s Toolkit For Deregulating Media and Telecommunications

Although there are many articles and blog posts discussing likely policy changes in the media and telecommunications space, it is far too early to know exactly when and what will happen at the Federal Communications Commission under the forthcoming Trump Administration. However, it is not too soon to identify the legal mechanisms available to Congress and the FCC to unwind many of the Obama era accomplishments. In light of the Democrats’ loss of the White House and failure to take control of the Senate, public interest advocates will have a very hard time protecting these and earlier regulatory requirements given the breadth of the power conferred by these statutes. From the moment he took office in late 2013, outgoing FCC Chairman Tom Wheeler operated from the premise that his tenure might not extend beyond January 2017. Even though he undertook an ambitious agenda as soon as he arrived, a number of his major initiatives were not completed until the latter part of 2016. As a practical matter, it is reasonably easy for Congressional Republicans and the incoming Republican majority at the FCC to derail at least some of these recently adopted regulations. Here’s how.

The Legal Underpinnings of The Prison Phone Call Debate

You may well have read about the Federal Communications Commission’s vote last August to cap rates for interstate phone calls placed by prison inmates. Understandably, most of the coverage of this controversy has focused upon what the FCC did, rather than the legal underpinnings of its actions. This post will address some of those legal questions.