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Thursday 8 April 2010
How I Lost the Big One, Bigtime

On Tuesday, the D.C. Circuit ruled on an important Internet law case I argued for the FCC’s supporting Intervenors, where the court rejected legal theories I helped craft on complaint I filed when I was, oddly, the only on-staff lawyer of the lead complainant, the media reform/open Internet group called Free Press. (I had deferred my current law professorship for that position.) Jack wrote about it yesterday, and I wanted to post a few thoughts about the decision.

I’ll begin with how the decision affects you: it’s really bad news for you and other Americans. I’m sorry to be the one to tell you, but I’m sure you’ve heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet’s role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us. (The subject of the Free Press-Comcast case, which this decision vacated, was precisely this factual scenario.) Tuesday’s decision also means the FCC cannot implement many aspects of its recently-issued National Broadband Plan, and the US will continue to fall behind the rest of the world with far slower, more expensive, and less innovative broadband service, strangling our economy and harming our democracy.

Really. At least, that’s the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration—a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.

From my point of view, I was reminded of my friend Larry Lessig’s classic article, “How I Lost the Big One,” where he said he wished he could go back in time and argue differently an important test case he lost in 2003 (Eldred v. Ashcroft). I’ve thought about the case, for months now since the argument, and I don’t feel that way. If we argued it poorly in Tuesday’s loss, we at least argued it 9 different ways (which I discuss this below). I doubt our tenth best argument would have worked any better. Plus, I benefited from the advice of so many lawyers and law professors during the FCC proceeding against Comcast, and on appeal (where the FCC’s excellent lawyers, not I, carried the oar), that I don’t think we could have had better lawyers considering the issues. (Thanks go to friends like Jack Balkin, Larry, Tim Wu, Barbara van Schewick, Yochai Benkler, those at Media Access Project and Public Knowledge, as well as, primarily, the amazing team at Free Press, those at the FCC, and many many others, for making sure some young law professor wouldn’t go astray.)

15 notes

  1. vdovault reblogged this from tanya77 and added:
    What tanya77 says…vacating the 2002 order is only a stopgap temporary fix til you get a law in place (yes I read the...
  2. soupsoup reblogged this from tanya77
  3. tanya77 reblogged this from azspot and added:
    When I testified before the Senate Committee in favor of Net Neutrality, Kevin Martin (then Chairman of the FCC) was...
  4. 4si4 reblogged this from azspot and added:
    Is it appropriate for individuals to compose difficult technical articles about how they single-handedly lost battles...
  5. azspot posted this

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