Genachowski Worries Courts Interpret Law Too Narrowly
FCC Chairman Julius Genachowski worries that U.S. appeals courts sometimes interpret statutes too narrowly in reviewing federal agency decisions. Hopeful his agency will prevail in a challenge to net neutrality rules before the U.S. Court of Appeals for the D.C. Circuit, he voiced concerns that courts generally aren’t giving agencies enough leeway to interpret legislation. That trend is “making it more and more difficult for agencies in fast-moving areas to respond to changes in technology or changes in the marketplace,” Genachowski said Wednesday during a Q-and-A with Jeffrey Rosen of The New Republic. Genachowski said he gets the rationale behind court decisions that say an agency overreached.
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Courts are saying “there has been a change,” so “go back to Congress and get a new law passed. If we take that too far, that will be unworkable,” Genachowski said. “It’s something I think we need to look at closely” as courts review challenges to agency decisions that may not be obviously within the bounds of a particular statute, he continued. “Reading statutes so strongly so that they end up” limiting “the purposes of the statute … can be a real problem.” On net neutrality, “I am hopeful that we will win this case,” and the commission carefully wrote the 2010 order and constructed its legal arguments, Genachowski said: “But I am concerned about how the courts are looking at some of these cases.” He said again it may be time to update the 1996 Telecom Act.
Net neutrality has worked in practice, Genachowski said. The framework for it is “in place,” he noted. “It has been followed by everyone in the industry for the past year, it is working.” Reversing the order “wouldn’t do anyone any good,” he said. The rules took effect in November, about a year after they were approved 3-2 and following publication in the Federal Register. Genachowski also waded in on the issue of the Stop Online Piracy Act, echoing some of the worries expressed by administration officials this weekend (CD Jan 18 p12).
Genachowski wouldn’t discuss his post-election job plans, when Rosen asked if he'd stay at the agency after this year. “We're very focused on 2012,” Genachowski responded. “We have a lot to do in 2012. We've done this each year. One at a time. That is what I'm focused on.” The FCC is working with members of Congress “on a bipartisan basis” to get the flexibility it seeks to set rules for incentive auctions of spectrum to reallocate it for broadband use, Genachowski said earlier on the panel. “I'm hopeful” Congress will give the commission such flexibility, he said.
CES demonstrates how online video is increasing, both in terms of content and in terms of devices that can get it, Genachowski said in response to our question about Internet video: “It is certainly one of the things you notice at CES: Every TV is an Internet-connected TV.” This is “a very interesting time” for Web video, Genachowski said. “We are starting to see exciting innovation in the online video space.” Since he came to the FCC in summer 2009, there have been many developments in the field, Genachowski said. “We have gone from very little innovation on the mobile platform to now hundreds of thousands of apps."
Web-connected TVs and other advances can help boost broadband adoption among U.S. households, a third of which don’t buy Internet service, because “not everyone has a computer, but everyone has a TV,” Genachowski said. “It is a way to get people online.” On home TVs, “you were not seeing much innovation there a few years ago,” he said, “and we have made that issue a focus” and there’s been “a lot of innovation and focus around the living room and TV."
Video distribution and content face competition from Internet video, Genachowski said: “Lower barriers to entry are good. We are seeing more players come in and disrupt the market -- that’s good. We are also seeing some of the traditional players now take seriously the opportunities in the new landscape, and that’s good.” It’s “been distressing” to Genachowski to watch newspapers “not respond more quickly to the opportunities and challenges of the Internet.” Consumers will “all be better off if video creators and distributors” and others are “pushing each other to innovate,” he said. “There is more that ought to happen in the online video space, but we are in a better position than we were a few years ago.”