T-Mobile’s Business Push, Technology Advantages, and 5G Slicing with Daryl Schoolar

Full Transcript

0m10s Speaker 0

Hello, and welcome to the one hundred and ninety ninth episode of the week with Roger, conversation between analysts about all things telecom, media, and technology from Recon Analytics. I'm Don Kellogg, and with me as always is Roger Antner. How are doing, Roger?

0m22s Speaker 1

Hey. I'm great. Roger, so

0m24s Speaker 0

the supreme court's term just came to a close. There were a number of pretty important cases that were decided this year, some of which speak to our area of expertise. One of which was the end of what's known as Chevron deference. Can you tell us a little about that?

0m40s Speaker 1

Yeah. Absolutely. So in 1984, in a landmark decision of Chevron against the Natural Resource Defense Council, the Supreme Court at that time decided that if Congress didn't directly address a question at the center of a dispute, if we went to trial, the court was required to uphold an agency's interpretation of the statute as long as it was reasonable. Basically, if the expert agency said, Here's that area that Congress didn't directly address, but here's our decision, because we are the experts, the court was supposed to follow the interpretation of the agency. With this case, which was the Looper case, the court now reversed that, Looper Bright Enterprises versus Raimondo.

1m37s Speaker 1

And basically, now courts are supposed to independently assess if the agency made the right decision or not. This is a major difference, right? The three liberal justices dissented, and, you know, I think Justice Kagan accurately predicted that it will cause a massive shock to the legal system. It significantly weakens the hand of the agency to basically make laws where Congress wasn't really explicit about it.

2m14s Speaker 0

So I mean, on one hand, I think you can make the argument that this kneecaps the agencies. On the other hand, if the argument for this was that the decisions that the agencies were making was flip flopping every time there was a new administration. Right?

2m26s Speaker 1

Well, exactly. You know, if if the agency is the expert, and let's take the case of net neutrality, you know, first I was for it, then I was against it, then I was for it again, right? It makes a mockery out of being an expert if when the head of the commission changes that the expert changes their mind. And that's not really a good idea of experts, right? And agencies are supposed to be, even though that the majority of an agency is appointed or decided by the party in the White House, is supposed to be an apolitical entity.

3m9s Speaker 1

Now, that's the idea, but, you know, reality, if we take this case, our agency, the FCC, you know, when President Biden said, you know, we will reinstitute net neutrality, what are the Democratic commissioners gonna do? You know, contradict the president? Right? The process just got politicized.

3m33s Speaker 0

The reality is that you have political appointees making policy. Right?

3m37s Speaker 1

Yes. And here, this case, now with Looper against Grimondo, it makes it harder for the expert agencies to do policy rather than be experts, because now you have an independent look by the judiciary at the decisions. And so it balances the decisions much more, because previously, the independent judges were supposed to follow the judgment and the opinion of the agency, which did policy according to the executive's wishes, rather than be an independent agency.

4m18s Speaker 0

So if there's legislation that mandates changes, right, that's not touched by this. It's the interpretation on the policy level by political appointees named by the executive branch, right? So to some extent, it shifts power to the legislative branch in the sense that if you really want something to happen, you've got to legislate it. And it also shifts power to the judicial branch in terms of adjudicating whether or not policy decisions made by political employees from the executive branch Makes sense. Right?

4m47s Speaker 1

Well, if congress wanted something, they could always ride it in. Right. This is mostly about

4m54s Speaker 0

Further than it's so easy for that to happen, though. Right? Particularly on things that are as fraud as net neutrality. Right?

4m59s Speaker 1

Well, here are things. Right? The law of the land is the Telecom Act, right? And the Telecom Act was written in 1996, before we really had the internet as it is. And so what the agency did was it force fit net neutrality into an act from 1996 that didn't predict the internet as it is, and it went through quite a lot of gymnastics to make that happen.

5m33s Speaker 1

At the time, you know, Republicans offered to do a clean act without attaching it to Title II and of net neutrality, and the Democrats refused to take them up on it because they wanted to have it based on Title II, which gives a lot of powers to the agency, especially on things they could potentially do, even though they said, oh, we're deciding not to do this, like pricing, for example. And so, where the agencies had power was to interpret old acts in a new light. And now this says, basically, if you want to have something clean, get an act, or now it has to have independent judicial overview. That's the key difference. And there was another case, which was quite interesting, which applies this, and I don't remember exactly what case it was, but that plaintiffs can now go back and also appeal old decisions that are sometimes decades old.

6m35s Speaker 1

And in the light of today, they can ask the court to review this, which is quite interesting because previously, it was like settled law and you were stuck with it. Now you can go back and say, like, this has changed and ask an independent judiciary and judge to review it.

6m56s Speaker 0

So interesting developments. Think we'd just hear your thoughts in terms of how this changes the telecom landscape in general. I mean, obviously, net neutrality is one piece of that. But, like, from a overall regulatory perspective, it certainly changes the breadth of what can be regulated or what might be reassessed under these new rules. Right?

7m15s Speaker 0

Well, the

7m16s Speaker 1

agencies are still free to come up with whatever regulation they would like to do. It's just now a much more even playing field. Previously, the playing field was like heavily tilted towards the agency as the expert, and the judge should defer to the expert agency when they make a decision. Now the judges have to independently come up with their decisions and not defer to the expert agency. And, you know, there's a lawsuit currently pending on net neutrality.

7m52s Speaker 1

We'll see what the judges decide.

7m55s Speaker 0

Yeah. So, I mean, it'll be interesting to see how this turns out. Right? I I think Yeah. There's still some TBD.

8m0s Speaker 0

It's certainly a big change in terms of how how regulatory and policy constructs have operated up until now. I don't necessarily think it's a bad thing that you should have to legislate major issues. I do also think that there is a role for experts to play in all this. Right? So Yeah.

8m16s Speaker 0

This may not be the last time we talk about this.

8m18s Speaker 1

And there is a rule for judges to make an independent decision if the agency did the right thing or not. That's it in a nutshell. So there will be a lot more lawsuits.

8m30s Speaker 0

Alright. We'll talk to you next week.

8m31s Speaker 1

Alright. Thank you.