Creative Lawyering

            Believe it or not you can enhance your lobbying and legal practice before the FCC with the use of creative thinking.  No fooling.  Let me provide you with an example.

            Say you’re a major wireless carrier that for five or more years has unlawfully generated $52 million in false billing for data sessions that did not trigger any downloads and usually occurred because of a poorly designed handset button.  Finally the FCC acts and orders a refund.  The pragmatist wing might accept a fine and use the episode to exemplify how responsive and  public-minded the company is.

            But the creative wing might try this strategy.  The FCC’s information service classification offers the carrier a deregulated “safe harbor” for wireless broadband data access.  The Comcast case supports the conclusion that the FCC has no jurisdiction to regulate the wireless carrier’s data services, including overbilling.  $52 million could mean the difference between a minor bonus and a really nice Christmas.  Hang tough management.  The FCC can’t lay a hand on us!  Just as we’re appealing the FCC’s attempt to impose common carrier roaming access for data service, so should we refuse to pay any fine or enter into a Consent Decree on the matter of data access billing irregularities.  The FCC has no jurisdiction over information service like wireless Internet access.

            It gets even better when someone suggests that ripped off subscribers simply will sue in state court.  Here’s the double dutch dose of creativity: we respond that subscribers must comply with mandatory arbitration which is going to cost more than what subscribers individually lost.  Thank you Supreme Court.  And if that somehow does not work we argue that the FCC has preempted the states from asserting jurisdiction, because data access is wire and radio.  If the FCC has opted not to regulate and to impose a duty to deal fairly with subscribers, then states (and for that matter courts hearing antitrust claims) have no basis to upset the FCC’s decision making.

            Is this a great country or what?