Monday, June 6, 2011

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?

A Right Way, A Wrong Way and the . . .

Back in my home town of Norfolk, Virginia one quickly learned that the Navy—a dominant presence—had its own rules.  The Navy Way was not right or wrong.  So when I get frustrated or confused I often attribute it to simply not knowing all the applicable rules.

I unintentionally downloaded and launched Microsoft’s Internet 9 web browser and quickly noticed that the list of frequently viewed web sites appear not on the left side, but on the right.  How many weeks will it take me to adjust to the new Rule?

Why the change?  Because Microsoft and its managers can make arbitrary decisions without much concern for user inconvenience. The Microsoft Way tends to create three steps where one or two previously worked.  Of course the Microsoft Way provides users the opportunity to shift favorites to the left side of the screen, but maybe you guessed that they revert to the right the next time you launch Internet Explorer.

The Microsoft Way predominates in the word processing market, much to the chagrin of people like me who found Wordperfect superior.  Today—on deadline or course—Microsoft Word suddenly lost its ability to count and number footnotes.  Yes, some academics face and meet deadlines and no, this glitch was not the product of operator error.  The Microsoft Way apparently does not change numbering until one accepts all changes when using the editing review process.  Of course I did not have that process in operation.  So the footnote editing process took three times as long as it otherwise would.

There’s an FCC Way as well, and it seems to work regardless of which political party controls the Whitehouse.  Top managers at the Commission determine whether people like are “with us, or against us” and whether outsiders have enough juice to make problems.  It comes across as a siege mentality, but cross one of these gatekeepers or fail the significance test and your calls and emails don’t get answered.  Apparently my work on regulatory reform, critiques of FCC decisions, and occasional work with certain out of grace public interest groups make responding to my infrequent calls and emails unnecessary.  Or maybe I am unworthy of a callback in light of my insignificance.  Or maybe I simply lack the gravitas worthy of a response. 

In any event my queries, offers to provide insights, volunteering to join an advisory group and even a free copy of my latest book trigger no response.  This frustrates me and creates every incentive for me to give up and accept my insignificance.  I’d like to think if I ever filled one of their positions I’d do the right thing and return their call.