The prior blog
entry suggested that the Supreme Court would have to use a semantic sleight of
hand to approve FCC deregulatory initiatives while vacating new or resurrected regulatory
rules and requirements. See https://telefrieden.blogspot.com/2024/04/does-supreme-court-conservative.html.
On further review, I think there just might be a way to pull this blocked on one
side, open on the other gambit.
Despite all
the speculation about pending foreclosure of regulatory agency discretion,
there is a provision in the Telecommunications Act of 1996 that the Court might
deem sufficiently clear to withstand the major question and ambiguity roadblocks:
47 U.S. Code § 160 - Competition in provision of telecommunications service. See https://www.law.cornell.edu/uscode/text/47/160.
This
Section establishes three evaluative criteria for the FCC to use when
considering a deregulatory proposal for Title II, telecommunications service
providers:
(1) enforcement
of such regulation or provision is not necessary to ensure that the charges,
practices, classifications, or regulations by, for, or in connection with
that telecommunications
carrier or telecommunications
service are just and reasonable and are not unjustly or unreasonably
discriminatory;
(2) enforcement
of such regulation or provision is not necessary for the protection of
consumers; and
(3) forbearance
from applying such provision or regulation is consistent with the public
interest. 47 U.S.C. §160(a)(1)-(3).
There’s a
lot of wiggle room in the criteria for a pro marketplace-oriented FCC to abandon
common carrier rules and regulations.
Despite all the conservative majority’s antipathy toward regulatory
agency activism, Section 160 just might provide enough clarity to green light
major deregulatory initiative.
No
questions asked.
