Showing 7 Publications by James L. Huffman

Lessons to Learn From University Presidents

Popular Media What will come of the presidents of three of America’s most prestigious universities being called on the congressional carpet to explain their responses to Hamas’ . . .

What will come of the presidents of three of America’s most prestigious universities being called on the congressional carpet to explain their responses to Hamas’ brutal assault on innocent Israelis?

Will the resignations of University of Pennsylvania President Liz Magill and Harvard President Claudine Gay mark a turning point for American higher education? Will the leaders of other colleges and universities be encouraged to reflect on how far their institutions have strayed from their historic missions — namely, the pursuit of truth and dissemination of knowledge?

Not if the lesson learned is implementing the policies implicit in the legislators’ questions.

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Innovation & the New Economy

Balancing Academic Independence: Beyond Congressional Oversight

Popular Media The scene was deeply troubling. Hundreds of college students proclaimed that Hamas’ October 7, 2023, assault on Israeli civilians was a heroic and justified act . . .

The scene was deeply troubling. Hundreds of college students proclaimed that Hamas’ October 7, 2023, assault on Israeli civilians was a heroic and justified act of liberation. It confirmed a level of ignorance engendered by decades of decay in our colleges and universities. But equally troubling is the fact that the United States Congress immediately intervened. If there is any social institution, along with religion, that should be insulated from political meddling, it is higher education.

Not long after October 7, the presidents of three of America’s most prominent universities were called onto the Congressional carpet by the House Committee on Education and the Workforce. When asked to explain their failure to condemn Hamas’ atrocities, all three offered what has been widely panned as evasive and inadequate responses. On December 13, the House of Representatives adopted House Resolution 927, “Condemning antisemitism on University campuses and the testimony of the University Presidents.” The resolution was approved in a 303-126 vote, with 84 Democrats and 219 Republicans in favor. The resolution condemned the presidents by name and called for their resignation.

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The Cancellation of Bertrand Russell

Popular Media Bertrand Russell is well known as a philosopher and mathematician. But few know that during his lifetime, he was cancelled—to use the contemporary term—by the . . .

Bertrand Russell is well known as a philosopher and mathematician. But few know that during his lifetime, he was cancelled—to use the contemporary term—by the New York judiciary and by mid-twentieth-century religious conservatives. Both those conservatives today who seek to ban books and regulate curricula and those progressives who wish to censor everyone who disagrees with them would do well to reflect on the Bertrand Russell case.

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Plaintiffs’ Remedy Lies in the Messy Democratic Process

Popular Media The 16 young Montanans who have sued in state court seeking a judicial declaration that the state of Montana‘s policies violate their right to a . . .

The 16 young Montanans who have sued in state court seeking a judicial declaration that the state of Montanas policies violate their right to a clean and healthful environment under Article IX, Section 1, of the Montana Constitution are surely both sincere and well intentioned. Climate change is a serious public concern that should focus the attention of Montana law makers. The plaintiff s allege that the states policies violate their constitutional rights by both contributing to and failing to do enough to combat climate change. They may well be right about the effects of state policies, but it is not within the competence or authority of the judiciary to second guess or override those policies. The trial judge has recognized as much by indicating that the only remedy she will consider is a declaratory judgment. But even a declaration that state policies violate the constitutional right to a clean and healthful environment would require the judge to conclude that there are better policies the executive and legislature should enact.

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Telecommunications & Regulated Utilities

University of North Carolina Trustees’ Plan Using Chicago Principles of Free Speech Falls Short

Popular Media The free speech wars are escalating at North Carolina’s flagship university. At its January, meeting the University of North Carolina at Chapel Hill board of . . .

The free speech wars are escalating at North Carolina’s flagship university.

At its January, meeting the University of North Carolina at Chapel Hill board of trustees directed the university administration to “accelerate its development of a School of Civic Life and Leadership.” Not surprisingly, the mandate has led to objections from UNC faculty members asserting that it is their province to determine curriculum. The president of the Southern Association of Colleges and Schools’ Commission on Colleges, Belle Wheelan, has weighed in suggesting that the university’s accreditation may be at risk if the trustees don’t rescind their directive.

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Innovation & the New Economy

Amicus Brief, Tennessee v. FCC, 6th Circuit

Amicus Brief "This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet..."

Summary

“This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet, including the supposed power to preempt decisions made by elected state lawmakers—without Congressional authorization.

To reject the FCC’s reinterpretation of Section 706 as an independent grant of authority is not to say that nothing more need be done to promote broadband deployment and competition—but to affirm two facts about the Telecommunications Act of 1996 (“1996 Act”). First, Congress intended Section 706 as a command to the FCC to use the abundant authority granted to it elsewhere in the 1934 Communications Act (“1934 Act”) to promote broadband deployment to all Americans. As the FCC said in 1998:

“After reviewing the language of section 706(a), its legislative history, the broader statutory scheme, and Congress’ policy objectives, we agree with numerous commenters that section 706(a) does not constitute an independent grant of forbearance authority or of authority to employ other regulating methods. Rather, we conclude that section 706(a) directs the Commission to use the authority granted in other provisions, including the forbearance authority under section 10(a), to encourage the deployment of advanced services. Advanced Services Order, ¶ 69 (emphasis added)”

Second, rejecting the FCC’s reinterpretation means affirming that Congress intended “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); see also 47 U.S.C. § 230(a)(5) (“The Internet and other interactive computer services have flourished, . . . with a minimum of government regulation.”)…”

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Telecommunications & Regulated Utilities

Amicus brief of ICLE and Administrative Law Scholars, US Telecom v. FCC, D.C. Circuit

Amicus Brief The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over . . .

The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over the entire broadband communications infrastructure of the United States—in the words of FCC Chairman Wheeler, “[t]he most powerful network ever known to Man”[1]—under the auspices of FCC regulation; and it assumes the ability to regulate even beyond this already incredibly broad scope on an “ancillary” or “secondary” basis so long as such regulation has at least a Rube-Goldberg-like connection to broadband deployment. In the Order, the Commission claims authority that it has consistently disclaimed; it ignores this court’s holding in Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (“Verizon”); and it bends to the point of breaking the statutory structure and purpose of the Communications and Telecommunications Acts. For all of these reasons, the Order should be rejected as exceeding the Commission’s statutory authority and as presenting and addressing major questions—questions of “deep economic and political significance,” see, e.g., King v. Burwell, No. 14-114, slip op. at 8 (2015)—that can only be addressed by Congress. See Randolph May, Chevron Decision’s Domain May Be Shrinking, THE HILL (Jul. 7, 2015).

The Commission’s authority is based in the 1934 Act, as modified by the 1996 Act. The general purpose of the 1934 Act was to establish and maintain a pervasively-regulated federal telephone monopoly built upon a relatively simple and static technology. This was the status quo for most of the 20th century, during which time the FCC had authority to regulate every aspect of the telecommunications industry—down to investment decisions, pricing, business plans, and even employment decisions. As technology progressed, however, competition found its way into various parts of the industry, upsetting the regulated monopoly structure. This ultimately led to passage of the 1996 Act, the general purpose of which was to deregulate the telecommunications industry—that is, to get the FCC out of the business of pervasive regulation and to rely, instead, on competition.[2] This objective has proven effective: Over the past two decades, competition has driven hundreds of billions of dollars of private investment, the telecommunications capabilities available to all Americans have expanded dramatically, and competition—while still developing—has increased substantially. The range of technologies available to every American has exceeded expectations, at costs and in a timeframe previously unimagined, and at a pace that leads the world.[3]

Today, many Americans are continuously engaged in online interactions. The Internet is the locus of significant political and educational activity; it is an indispensable source of basic and emergency news and information; it is a central hub for social interaction and organization; it is where people go to conduct business and find work; it is how many Americans engage with their communities and leaders; and it has generated hundreds of billions of dollars of annual economic activity.

Regulation of the Internet, in other words, presents questions of “vast ‘economic and political significance,’” Utility Air Regulatory Group v. Envtl. Prot. Agency, 134 S. Ct. 2427, 2444 (2014) (“UARG”), as substantial as any ever considered by a federal agency.

While the Commission disclaims authority to regulate significant swaths of the Internet ecosystem, the Order is nonetheless premised on interpretations of the 1934 Act that do give it authority over that ecosystem. This court should greet the Commission’s claimed authority with substantial skepticism. See UARG, 134 S. Ct. at 2444 (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.”) (emphasis added) (quoting Brown & Williamson v. Food & Drug Admin., 529 U.S. 120, 159 (2000) (“Brown & Williamson”). This is especially true given the statutory structure and purpose of the 1996 Act and the Commission’s historical, hands-off approach to the Internet. See King v. Burwell, slip op. at 15 (courts “must turn to the broader structure of the Act to determine the meaning” of language within a statute). Although this court addressed and rejected a challenge to the 2010 Order on these grounds, the Supreme Court has in the intervening months decided two cases—UARG and King v. Burwell—that revitalize the challenge, especially given the 2015 Order’s more aggressive posture.

The FCC claims that new rules were needed to prevent blocking, throttling, and discrimination on the Internet. But the poor fit between the Commission’s preferred regulatory regime and the statutory authority upon which it rests is manifest. This disconnect is made clear by the numerous effects of the regulations that the Commission must describe as “ancillary” or “secondary,” and the numerous statutory provisions that must be forborne from or otherwise ignored in order to make the Order feasible.

In short, the Order rests upon a confusing patchwork of individual clauses from scattered sections of the Act, sewn together without regard to the context, structure, purpose, or limitations of the Act, in order to “find” a statutory basis for the Commission’s preferred approach to regulating the Internet. As such, it fails to “bear[] in mind the ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” UARG, 134 S. Ct. at 2441 (quoting Brown & Williamson, 529 U.S. at 133).

Accordingly, the court should vacate the Order

[1] See Remarks of FCC Chairman Tom Wheeler, Silicon Flatirons Center (Feb. 9, 2015) at 5, available at https://www.fcc.gov/document/chairman-wheeler-siliconflatirons-center-boulder-colorado.

[2] See, e.g., FCC Chairman William Kennard, A New Federal Communications Commission for the 21st Century, I-A (1999), available at http://transition.fcc.gov/Reports/fcc21.html. (“With the passage of the Telecommunications Act of 1996, Congress recognized that competition should be the organizing principle of our communications law and policy and should replace micromanagement and monopoly regulation.”).

[3] See id. (“[A]s competition develops across what had been distinct industries, we should level… regulation down to the least burdensome level necessary to protect the public interest. Our guiding principle should be to presume that new entrants and competitors should not be subjected to legacy regulation.”)

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Telecommunications & Regulated Utilities