Sue Me, Sue Me, What Can You Do Me?

I have a cold. My husband suggested I take Nyquil. But I don’t like Nyquil, it leaves a bad taste in my mouth and it’s hard to get that taste out. It’s the same way with resigning FCC Chairman Michael Powell. It’s going to take a long time, a really, really long time, to get over all the bad tasting medicine he spooned out in his eight years at the Commission.

He had that “De-Reg Eye for the Industry Guy” down pat. And while the Wall Street Journal was boo-hooing into their Caramel Cappucino Lattes this morning, there was a huge part of the public interest community popping champagne corks and dancing in the street.

I want to caution those public interest folks not to get too happy too soon. For one thing, Kevin Martin is the Washington Post’s odds-on favorite to succeed Powell. And for another, there’s an even more interesting train coming down the tracks than who’s in and who’s out at the FCC. That train has a big, bright, neon sign flashing across the side and that sign reads “Judgeships.”

See Powell had this philosophy that the telecom industry should just do what boys do and if, after the fact, there were problems, then hey, go to court!

"Would you rather have the opportunity with litigation risk, or no opportunity whatsoever and have nothing to litigate about? Our job is to write rules that are as ironclad and defensible as possible. But we live in a society that if you don't like it, you can sue," said Powell in a 2003 interview with the Seattle Times.

That might have worked if public interest groups and municipalities could count on getting a fair hearing, but recently Michael Feazel (Communications Daily) reported that several re-nominations included judges with deep ties to telecom or interesting interpretations of the Telecommunications Act.

According to Communications Daily, the list includes:

“Paul Crotty, re-nominated to a judgeship in US District Court, New York City, is a longtime Verizon executive.

U.S. District Judge Terrence Boyle (Raleigh, NC), re-nominated to a seat on the 4th U.S. Appeals Court, Richmond, sat on the 4th Circuit Appeals Court panel that unanimously said AOL isn't responsible for anonymous postings that resulted in dozens of harassing phone calls to a Seattle businessman. The opinion said the Telecom Act expressed clear intent that online service companies not be liable for 'material posted by third parties on their system.'

Thomas Griffith, re-nominated to a seat on the U.S. District Judge,D.C. is an ex-partner at communications law firm Wiley, Rein & Fielding.”

Powell was right, we do live in a society where if you don’t like something you can sue, but nothing guarantees that you will win. Especially not if you’re going up against judges that have certain propensities.

I hate to deliver bad news, but Judgeships are just one more thing for the public interest community to have to think about. And just when you thought it was safe to go back into the water…