FCC authority, the big net neutrality ruling, and the common law

I haven't had the time to read this week's court ruling, nor the dissenting opinion, about the FCC's net neutrality rules.

I've only had the time to scan headlines on my phone.

6a01156e3d83cb970c01a510f07284970c-580wiVerizon, which brought the case challenging the rules, won the day but seems to be saying publicly they may have lost the larger battle.

The FCC reportedly doesn't yet know if it will appeal to the Supreme Court, but maybe rather likes the idea that the court appears to have found the agency has express authority to regulate the internet and the internet of things.

I was struck by this expression of the FCC Chair, in a blog post about the courts ruling, on the merits and genius of the common-law:

"How jurisdiction is exercised is an important matter. My strong preference is to do it in a common law fashion, taking account of and learning from the particular facts that have given rise to concern. The preference is based on a desire to avoid both Type I (false positives) and Type II (false negatives) errors. It is important not to prohibit or inhibit conduct that is efficiency producing and competition enhancing. It also is important not to permit conduct that reduces efficiency, competition, and utility, including the values that go beyond the material."

It reminds me of something I only just read at the end of Edmund Morris' magnificent volume covering Theodore Roosevelt's presidency, Theodore Rex.

Morris states that Roosevelt wrote a special address to Congress, a parting discharge from a shotgun, that included an argument for the higher accountability associated with centralized executive power, as well as what Morris describes as "revolutionary" thinking about the role of judges in a kind of extended legislative process. Through the common law, judges update legislation and keep it better synched with societal needs and expectations.

I need to find and read that Roosevelt address.


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