Andrew Jay Schwartzman

Every Tuesday and Friday morning at 10 am (Eastern), scores of journalists, activists, and lawyers stare at the website of the U.S. Court of Appeals for the D.C. Circuit’s “Opinions” page, rapidly refreshing their browsers. They are waiting for the court’s opinion in the challenge to the Federal Communications Commission’s 2017 decision repealing its own Obama-era network neutrality rules.

On February 1, 2019, the Benton Foundation joins a host of public interest organizations, states, and businesses that are arguing that the United States Court of Appeals for the District of Columbia Circuit should overturn the December 2017 Federal Communications Commission order that eliminated strong, enforceable net neutrality rules. An internet without net neutrality is a threat to free speech and democratic participation online. Without net neutrality protections, broadband providers are free to interfere with lawful content and services.

The FCC ruled that there are substantial and material questions as to whether Sinclair is qualified to be a broadcast licensee. There is only one way to resolve these questions in a transparent manner that allows public participation: a hearing on the renewal of Sinclair’s broadcast television licenses.

One of the most important antitrust cases in recent decades, the Department of Justice’s (DOJ) move to block AT&T from acquiring Time Warner, goes to trial in Washington, DC, on March 19. The significance of the case goes well beyond its impact on this huge transaction and on future media mergers.

On October 17, President Donald Trump launched a vague, yet ominous Twitter-driven attack on NBC, rhetorically asking, “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?  Bad for country!” The short answer to the President’s question is “never.”  A slightly longer answer is that there is no license to challenge and, even if there were, no broadcaster should worry that its license would ever be in jeopardy because of disagreement with its programming. [Andrew Jay Schwartzman]

[Commentary] Cell-site simulators, often (if not entirely accurately) referred to as “Stingrays,” pose important legal and policy issues for a democratic society, especially in light of evidence that these devices have disproportionately been used to target communities of color. There is bipartisan concern about the serious Fourth Amendment questions surrounding their use, as exemplified by a staff report recently issued on behalf of the Republican Chair and Democratic Ranking member of the House Committee on Oversight and Government Reform. This post deals with a different question: whether use of CS simulators by state and local authorities also violates the Communications Act.
[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]

[Commentary] A hallmark of Tom Wheeler’s tenure as Federal Communications Commission Chairman has been his willingness to take on difficult challenges and push them to completion. Surely one of the most difficult of these undertakings has been to reform “special access,” which the Wheeler FCC has wisely, and more appropriately, renamed “Business Data Services.” Reform advocates argue that BDS prices are grossly excessive and unjustly enrich the former AT&T local phone companies. They maintain that this has stifled competition and dissuaded new entrants into the market. Since these overcharges are passed through to all consumers, the overcharges have arguably increased the prices that we pay for all manner of services seemingly unrelated to telecommunications. To understand the role of these wholesale services, think about how you place a call or send an email on your cellphone. The communication travels only a very short distance via wireless spectrum to a nearby antenna. Your provider must then get the data to a node where it can be entered into the international Internet and telephone networks. The process may work in reverse at the receiving end of the message. Unless your provider is AT&T or Verizon Wireless, the cell phone company must purchase access to these connections, and the “legacy” phone companies still maintain a near-monopoly on these services.

[Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

[Commentary] It might not be surprising that major industries would mount a big fight over how to deploy a swathe of currently unused spectrum. However, a dispute over a chunk of spectrum located in the 5.9 gigahertz (GHz) band also pits different parts of the federal government against each other and, even in Washington’s ever-more partisan environment, has Republicans and Democrats on both sides. As such, the dispute offers some important insights into the political gamesmanship surrounding spectrum allocation.

[Commentary] Sisyphus, you may recall from high school days, was sentenced to an eternity of rolling a boulder uphill only to watch it roll back down. Section 202(h) of the 1996 Telecommunications Act gave the Federal Communications Commission the Sisyphean task of reviewing all of its broadcast ownership rules every two years (later extended to four) and determining whether each of them continue to be "necessary in the public interest."

On April 15, the FCC voted to start the latest Section 202(h) proceeding by issuing an order initiating the 2014 Quadrennial Review. Even though the FCC has attempted to wrap the last Quadrennial Review into the new one, the Commission has already been hauled into court, and more judicial proceedings will take place even as the FCC receives and considers comments from interested parties.

From a public interest perspective, there are positive and negative aspects to what the FCC did, and didn’t do, in starting the 2014 Quadrennial Review. This post focuses on those aspects of the FCC’s action and related matters along the way.

The most complicated part of all this is just beginning. Whenever the FCC does anything important, somebody takes it to court. Three appeals (technically, they are “petitions for review”) have been filed with respect to the April 15 decision in the District of Columbia. Once it is finally determined which court or courts will hear the appeals, briefs will be filed, probably by early fall.

Then there will be an oral argument, perhaps by the end of the year or early next year. Meanwhile, the FCC will be accepting comments on the 2014 Quadrennial Review, with a decision also likely early 2015. Then, depending on what has already happened in the courts, everyone will appeal that decision. After that, everyone can look forward to the 2018 Quadrennial Review, when it starts all over again.