Daniel L. Brenner, National Cable & Telecommunications Association (NCTA)
The Federal Communications Commission (FCC) is considered by Congress and courts to be an “expert” agency and is tasked with a wide range of decisions that rely on expertise in engineering, economics and statutory construction. This presumed expertise allows courts to grant “deference” to the agency’s decisions. In appeals of FCC decisions, the adage that applies is, “Tie goes to the FCC.”
On engineering matters, this often makes the most sense. The FCC’s engineers can use field or predicted measurements to decide, for example, if two radio stations will interfere or two satellites are too close to each other. And, unless the judge’s law clerk or the judge has the avidity or expertise to look into the results, it’s unlikely that the FCC’s decision would be disturbed on appeal.
Similarly, on some but not all interpretive technical policy issues, the FCC judgment won’t be disturbed. In recent years, courts have deferred to such matters as what rate to charge a cable company when it attaches to a utility pole to provide high speed data service, how to define cable modem service, or whether to prohibit integrated security in set-top boxes to promote a retail market for cable boxes.
Where economics are involved, the FCC has been granted less deference. Ownership limits set by the FCC have been tossed out, with a series of Goldilocks-like decisions that decree some limits too high, some too low. These include how many subscribers a single cable operator can control (court said too low); how many program networks that a cable operator carries it can also own (too low); whether a broadcaster can also own a newspaper (pending); or limits to the number of stations one broadcaster can control (too high). (…)
The full essay online: