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Federal Communications Commission

Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.

Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.

The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]

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Per activist group Blue Oregon, the Federal Communications Commission (FCC) should yank radio station KPOJ’s license because its owner dropped progressive talk shows and switched instead to a sports format. “Clear Channel must air programming that is responsive to the needs and problems of its local community. That’s us. We’re the community,” the group says. More: Willamette Week.

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“Should we have a federal law against talking on the phone in restaurants? … If the flying public hates phone calls so much, airlines can be expected to prohibit them. The government does not need to get involved.” [Josh Barro, Business Insider; Ira Stoll]

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Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]

This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.

January 24 roundup

by Walter Olson on January 24, 2011

  • Trouble with hunting bad/burdensome regulations: most of them have entrenched advocates [NY Times] “Obama — the Great Deregulator?” [Jeff Jacoby, Boston Globe]. Earlier here and here;
  • Now we find out: tax hikes on outsourcing in 9/11 compensation bill infuriate India, were never vetted by Hill tax panels [PoL; more on Easter eggs in bill] Law firm that advertises for 9/11 dust clients is fan of Sen. Gillibrand [Stoll]
  • France will stop censoring some historical images of smokers in ads [NY Times]
  • “2010: The Year of the Angry, Company-Suing Plaintiff” [WSJ Law Blog] “The most sued companies in America” [Fox Business, counting federal-court suits only]
  • Death by drunk driving: As bad as purposeful murder? Worse? [Greenfield]
  • EPA gets specific on its plans to advance “environmental justice,” combat disparate racial impact in project siting, etc. [WLF, Popeo, earlier here, here, here, etc.]
  • Winners of Chamber’s “Most Ridiculous Lawsuits of 2010″ competition [US Chamber ILR]
  • “If the FCC had regulated the Internet” [Jack Shafer, Slate]