An Epidemic of Overreach at the Supreme Court, FCC and Beyond

           Recent precedent overturning decisions by the Supreme Court prompted thoughts about the human proclivity to overreach when assuming—correctly or not—the opportunity and divine duty to act. I am certain the conversative majority at the Court thinks they should exploit their numbers to the max, having toiled in the vineyards for so many years as a minority voice of reason.

           It seems almost a foregone conclusion that an unfortunate and harmful sequence of increasingly unwise and ill-conceived actions start when an individual or group perceives an opportunity to overplay an advantage that might be a long time coming.

           In quick succession, the Supreme Court conservative wing has checked off a longstanding wish list. Surely there is strength in numbers and reinforcing validation. Having achieved longstanding goals, the Court conservatives now expand their list of attainable ambitions in an ever more aggressive and risky selection of outcomes previously considered both unattainable and unlawful.

           The possibility exists that overreach may reach an endpoint and pushback. Overconfidence morphs into hubris, inflexibility, results-driven decision making, sanctimoniousness, and arrogance.  Having reversed Roe v. Wade, why not press onward and outlaw the decades-long use of medications that terminate early pregnancies. Why stop there? How about outlawing contraception? Might there be a way to execute the religious view that in vitro pregnancies, supported by federally approved fertility enhancing medications, can be judicially deemed unlawful? While they are at it, might the end point be a complete prohibition on any sort of pregnancy termination?

           I hope pushback eventually reaches a critical mass, when overreach, of any sort and political basis, has become unpopular, unlawful, and based on assumptions and personal views rather than facts. 

           Let’s consider overreach at the FCC by Democratic and Republican majorities.  A Democratic majority FCC can engage in mission creep, sometimes the product of Chevon Doctrine deference to agency expertise.  A Republican majority might interpret a statute as authorizing its result-driven determination that current market conditions justify deregulation and industry self-regulation.

           A humble judiciary, not motivated by doctrine, politics, and personal bias, might not second guess the FCC’s interpretation of an ambiguous law. Often this makes sense, because a hands-on, close understanding of technology and market change trumps insistence on narrow, historical extrapolation.  For example, a reviewing court should uphold an FCC expansion of its regulatory wingspan to include fiber optic cable, even though the Communications Act of 1934 specifies jurisdiction only for “wire and radio.”  See https://telefrieden.blogspot.com/2024/06/who-needs-humility-when-you-have-6-3.html.

           Democratic overreach might delay or reject deregulation based on a determination that self-regulation will harm consumers, promote market concentration, and stifle market entry by small ventures with a promising new business plan. Republicans might search for regulations they consider job killing, innovation stifling, and a threat to national security.

           I cannot understand how FCC Commissioners, of either party, can come up with a rationale for more or less regulation based on mere conjecture, not science, statistics, and facts.

           Republicans and their sponsored researchers spoke with absolute certainty that network neutrality regulation reduces infrastructure spending by wireless carriers.  These Commissioners ignored whether the carriers had to invest in next generation plant, or having previously done so, they could reduce capital expenditures for a while. If network neutrality had such a stifling effect on plant investment, what evidence shows a significant increase in capex now that network neutrality rules have evaporated?

           Democrats and their sponsored researchers also speak with absolute certainty about the benefits of network neutrality rules. I think they overreached with some unnecessary safeguards that could harm broadband subscribers rather than protect them from unlawful carrier behavior.  I consider some types of so-called paid prioritization potentially desirable and beneficial to some consumers without constituting unlawful discrimination. 

           Might some video streaming subscribers want “better than best efforts” routing of mission critical bits?  How about access to video content at the highest bit rate a carrier can deliver instead of an industrywide (collusive?) decision to throttle wireless video streams to “CD quality”? If carriers can lawfully package service tiers on bitrate and data volume, why would any FCC administration permit deliberate service degradation?

          Bottom line: overreach occurs everywhere often with readily identifiable harms.