The Supreme Court’s recent decision upholding the constitutionality of the “individual...
The Supreme Court’s recent decision upholding the constitutionality of the “individual mandate” in the Affordable Care Act, in National Federation of Independent Business v. Sebelius, has potentially negative implications for whether the FCC can mandate 700 MHz handset interoperability, said…
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Fred Campbell, director of the Competitive Enterprise Institute’s Communications Liberty and Innovation Project, on the group’s blog. “The Court held that Congress lacked the authority to impose the individual mandate under the Commerce Clause, which is applicable only to the regulation of existing commercial activity,” Campbell said (http://xrl.us/bnfrii). “According to the Court, ‘Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.'” The court upheld the mandate, “but only as a tax, not as a regulation,” Campbell noted. The language in the decision could be bad news for advocates of an interoperability mandate, he said. “The interoperability mandate proposed by the FCC shares the characteristics of the individual mandate that the Court considered constitutionally objectionable,” wrote Campbell, former chief of the Wireless Bureau. “The FCC has proposed forcing AT&T (and similarly situated licensees) to buy equipment that operates on the 700 MHz A Block spectrum, which AT&T cannot legally use, in order to subsidize the costs of AT&T competitors, who are licensed to use that spectrum. That sounds remarkably similar to forcing healthy individuals to buy health insurance in order to subsidize the cost of insurance for the unhealthy."