Like many others, I have long been troubled by the fact that the Supreme Court does not allow TV cameras or live audio coverage of the cases it hears. I know all the arguments against live video or audio coverage and I find them all quite unconvincing when weighed against the public's right to hear the oral arguments and decisions that will have such a direct bearing on their lives and liberty. We should be allowed to see, or at least hear, these arguments and decisions as they happen.

Anyway, as I was reading through an article today in Broadcasting & Cable about how "C-SPAN Seeks Oral Argument Tapes in Fox Swearing Case," I couldn't help but think about how particularly ironic it was that our nation's highest court would be considering one of the most important free speech cases in decades -- FCC v. Fox -- and it yet wouldn't be allowing any of us to listen in live when it takes place on November 4th! If we are lucky, the Court might grant C-SPAN expedited access to the tapes of the arguments, but it may be that we have to wait many weeks to hear what was said.

Seems silly to me. Worse yet, it means I will have to camp out in front of the Supreme Court the night before and freeze my butt off in the hope of getting a seat in the courtroom to hear the live argument! Which brings up the final bit of irony I always like to point out about restricting cameras and microphones from courtrooms: Why are they letting anyone in the courtroom at all if they so fear instantaneous public access to the arguments?

I was on NPR's "On the Media" program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC's fines in the "Janet Jackson case." As I noted in this lengthy analysis of the decision, the court said that the agency's recent efforts to expand the parameters of "indecency" enforcement for broadcast programming went too far, too fast. "[T]he FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy," the Court held.

"On the Media" host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below...

As I mentioned in my testimony before the Senate Commerce Committee and again at an economics conference this week, addressing network neutrality concerns on a case-by-case basis can mitigate some of the potential risks associated with prophylactic rules in this area. But it's worth underscoring another benefit that would result if Congress adopted this approach in new legislation: it would clarify government's authority to address the concerns underlying proposed network neutrality mandates.

Given the eminence of the other speakers on yesterday's ABA panel regarding antitrust in the broadband world, it is not surprising that the discussion went far beyond debating various interpretations of the Supreme Court's Trinko decision. We also explored -- the Court's opinion aside -- the extent to which antitrust should serve as a backstop to FCC regulation.

But taking FCC regulation largely as given and then considering the proper role for antitrust may not go far enough; our talk raised issues that made me wish we had considered the interplay between antitrust and regulation more holistically. Given the general agreement that competitive analysis will be a critical element of the government's involvement with broadband going forward, policymakers should begin to develop consensus regarding which arm of government should conduct that analysis and why.

Debate lingers regarding the impact of the Supreme Court's decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP on the application of antitrust law to the highly-regulated communications industry. Some suggest Trinko virtually, if not categorically, displaces antitrust oversight of the industry, while others argue Trinko obviates antitrust oversight only where a court concludes that FCC and state regulators adequately police anticompetitive behavior.

Given this debate (and considerable dicta in Trinko), questions will remain regarding how the decision may affect government efforts to promote competition in communications, especially with respect to broadband services. Yet despite worries that most consumers will never enjoy competition much beyond cable and telephone company offerings, it seems unlikely that broadband providers will be found to violate antitrust laws in the near term, even if Trinko does nothing to curb the scope of such laws.

Google's announcement that it would add an instant-messaging and voice service called "GoogleTalk" to its already popular search engine put a fine point at the end of PFF's Aspen Summit. As reported in the New York Times [registration required], the announcement underscored the growing market influence that has fanned flames of fear among Google's rivals. These fears -- reminiscent of allegations against Microsoft -- offer yet another compelling reason why companies that are (or hope to be) successful in the Internet space should think twice before seeking to impose mandates like "network neutrality" on their infrastructure-building competitors.

Minimizing regulation of broadband is critical to maximizing incentives for the private sector to build what market participants and policy folks of all stripes want: competing broadband networks. Such competition will do a better job than the government in bringing consumers the full benefits of the broadband Internet. That said, the FCC's recent moves to unshackle the Bells and other large phone companies to provide broadband may enjoy only feint praise from their competitors, as my "Outside the Box" column in SkyReport explores.

As policy mavens continue to digest the import of the FCC's decision to adopt a Policy Statement in support of "net neutrality," one question looms: will the Statement make it more likely that broadband providers will be required to give consumers this unfettered use of content, applications and devices? I think the answer to this (admittedly close) question is "probably not."

As rumors mount regarding whether the FCC will adopt an order to deregulate telephone companies' broadband offerings and what such an order would say, it's a good time for a review lesson (egoistically, of my previous comments in this blog). In particular, it is a good time to review that there are two related, yet distinct, questions the agency must answer as it establishes a new framework for regulating these services:

First, the FCC must decide when these services are "telecommunications services" and when they are "information services" (i.e., the statutory classification of these services).

Second, the FCC must determine whether and when regulatory obligations should be imposed on these services, as the statute gives the FCC some leeway in how it regulates within each classification.

In the short-hand that typically characterizes the rumor mill, this two-step analysis typically gets blurred. But only by distinguishing these steps can one discern several important implications regarding how broadband deregulation is likely to unfold -- even if such implications ultimately are muted by the nature of policymaking within the Beltway.

This blog devoted to appellate litigation has an interesting Q&A from August 2004 with Seventh Circuit Judge Frank H. Easterbrook. He is not yet 60 years of age, but his name doesn't show up in the popular press as a contender for the Supreme Court. It should. The interview offers something for (nearly) everyone. Judge Easterbrook touches on what OSHA would say about the bottomless death pits in Star Wars as well as how he would use a trap door to dispose of advocates who violate the Court's rules.

Near the end of the interview, Easterbrook revisits his disdain for neologisms like "cyberlaw," written up memorably here as "Cyberspace and the Law of the Horse."