[OldManMac]

It seems that George I Can Do Anything I Want Bush is starting to get some not so positivie feedback on his attempts to circumvent the Constitution! From today's New York Times.

In Debate on Antiterrorism, the Courts Assert Themselves
By DAVID JOHNSTON

Published: December 19, 2003



ASHINGTON, Dec. 18 — The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the civilian court system is now being challenged by the federal courts, the very branch of the government the White House hoped to circumvent.

The two separate appellate court rulings on Thursday swept away crucial parts of the administration's legal strategy to handle terrorist suspects outside the criminal justice system and incarcerate them indefinitely without access to lawyers or to the evidence against them.

The rulings are by no means a final judicial verdict on the administration's approach. But the rulings demonstrated powerfully the willingness of the courts to challenge the administration's procedures, which were put in place without Congressional approval in the tumultuous months that followed the Sept. 11 attacks.

The issue of whether the administration has gone too far will not be decided definitively until the cases reach the Supreme Court. The court has agreed to decide whether detainees at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention.

Nevertheless, in one sense the administration has already lost an important point by the courts' willingness to ignore assertions that the issues are exclusively within the discretion of the executive branch.

Kenneth Roth, executive director of Human Rights Watch, said the two decisions were a serious setback for the administration's legal approach.

"The Padilla decision emphasized the Bush administration's unilateralism versus Congress," Mr. Roth said, referring to an appellate court ruling on Thursday in the case of a United States citizen, Jose Padilla, arrested on American soil on suspicion of terrorism.

"The Ninth Circuit decision said that you can't create a legal black hole in territory controlled by the United States," Mr. Roth added, referring to a second ruling on Thursday related to noncitizens captured in the Afghan war and detained at a naval base in Guantánamo Bay.

"Both attacked the Bush administration's view that a war metaphor can justify restrictions on basic criminal justice rights away from a traditional battlefield," Mr. Roth said.

The rulings suggested the possibility that the administration could be forced to redefine its strategy, possibly by seeking Congressional authorization or by returning to established legal procedures to deal with suspected terrorists.

But on Thursday, administration officials gave no sign that they would retreat from their approach. "Actually these rulings are an aberration," said a senior Justice Department official. "The administration has been upheld time and time again."

The official cited rulings supporting presidential authority to freeze assets of organizations that help finance terrorists and allowing the government to close immigration hearings in cases related to Sept. 11.

The arrangement for detaining terrorist suspects was developed against a backdrop of fear as American military planners prepared for war in Afghanistan. Mr. Bush's legal advisers worried that if terror cases were tried in the existing civilian and military justice systems, prosecutors would be forced to give away too much information to terrorist enemies.

In criminal courts, defendants are entitled to lawyers, have a right to a speedy trial and must be advised of the evidence and witnesses against them — concessions that the Bush administration did not want to grant to combatants in a war with adversaries who recognized none of the traditional rules of combat.

In New York on Thursday, a federal appeals court opinion in the case of Mr. Padilla struck at the heart of that aggressive strategy. The panel's 2-to-1 opinion said that the president lacked the authority to exercise such broad coercive powers against American citizens without the consent of Congress.

Specifically, the judges attacked the government's designation of Mr. Padilla as an enemy combatant, a category of detainee that was created shortly after Sept. 11 to hold suspected terrorists without the rights that criminal suspects are routinely granted in the civilian court system.

Mr. Padilla has been identified as a lower-level Qaeda operative who entered the United States to plan an attack involving a so-called dirty bomb, which spews radiological material using conventional explosives.

Government officials have said that it was Abu Zubaydah, a senior Qaeda operative detained in an unknown location who provided the information that led to Mr. Padilla's arrest. Later, officials said that Mr. Padilla was dispatched to the United States by Khalid Sheik Mohammed, another top Qaeda operational leader, who was also captured earlier this year.

The officials said that in a criminal trial they would be forced to disclose information about Mr. Padilla that Mr. Zubaydah or Mr. Mohammed had provided to interrogators, a step that intelligence analysts say would pose a risk to national security.

In the case in San Francisco, a 2-to-1 panel said on Thursday that the detention of 660 noncitizens at Guantánamo Bay without the protection of the American legal system was unconstitutional and a violation of international law.

[boots]

Yep. Finally. The courts are balancing things again.

[christ]

Originally posted by KarlG:
...In the case in San Francisco, a 2-to-1 panel said on Thursday that the detention of 660 noncitizens at Guantánamo Bay without the protection of the American legal system was unconstitutional and a violation of international law.

But Simey says that it's alright. I wonder who is correct?

[vmarks]

Originally posted by christ:
But Simey says that it's alright. I wonder who is correct?

Given that this was a Ninth Circuit Court decision, and the quality of decisions they have made in the recent past, I'm willing to suggest Simey is correct- Even a law student has a better chance of judging on the merits and law than that court.

As for whether or not the courts are simply 'balancing things again' :

Here's what Thomas Jefferson said about allowing the Court to hold a monopoly on the interpretation of the Constitution: "... the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

[christ]

Originally posted by vmarks:
...Even a law student has a better chance of judging on the merits and law than [the Ninth Circuit] court.

Why is that?

What is it about that court that makes its judges, who were presumably once lawyers themselves, do (what some obviously consider to be) stupid things?

[Spheric Harlot]

Originally posted by christ:
Why is that?

What is it about that court that makes its judges, who were presumably once lawyers themselves, do (what some obviously consider to be) stupid things?

The fact that vmarks disagrees?

[boots]

Originally posted by vmarks:


As for whether or not the courts are simply 'balancing things again' :

Here's what Thomas Jefferson said about allowing the Court to hold a monopoly on the interpretation of the Constitution: "... the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

They didn't say it was unconstitutional...just that congress had never given the executive branch that broad a power. That's the balance to which I refer.

As to a monopoly on constitutionality, they don't. The constitution can be changed (and has) in light of court interpretation. One might also add that the judiciary branch (on the federal level) is appointed by the executive and approved by the executive. So there is no monopoly.

[Millennium]

Originally posted by boots:
As to a monopoly on constitutionality, they don't. The constitution can be changed (and has) in light of court interpretation. One might also add that the judiciary branch (on the federal level) is appointed by the executive and approved by the executive. So there is no monopoly.

Exactly. This is part of the system of checks and balances that Americans love talking about when discussing the structure of the government. There is basically nothing that any one branch of the government can do which cannot be overridden by at least one (and usually both) of the other branches.

This is, for example, why judicial review usually works well. The courts can strike down a law as unconstitutional, but they are bound by the Constitution: in response to this, Congress can start the process of amending the Constitution, which can overturn Court decisions. This has actually happened in the past; it is rare, but it occurs.

The Framers were very keen on this idea of making sure that power didn't go unchecked. Judicial review was never actually set up in the Constitution, but neither was it prohibited, and as it turned out, the proper checks were in place to ensure that Jefferson's fear did not come to pass. That's one hallmark of a well-designed structure: that it can take completely new variables without being compromised.

[vmarks]

Originally posted by christ:
Why is that?

What is it about that court that makes its judges, who were presumably once lawyers themselves, do (what some obviously consider to be) stupid things?

Because of the quantity of hideously poor decisions that the Ninth Circuit Court has made in recent years leads me to believe that a law student such as Simey is actually closer to understanding and interpreting the law than the members of that Court, who seem to have either forgotten the law they swore to uphold, or willfully ignore it.

The Ninth Circuit encompasses almost 40 percent of the United States._ It covers more than 1.3 million square miles. The Ninth Circuit’s population is two and one-half times greater than the other circuits._ Over 51 million people reside in the Ninth Circuit. Even if a new 12th Circuit Court was created the Ninth Circuit would still be larger than the next smallest circuit.

Litigants in the Ninth Circuit have to wait much longer to receive final decisions from the court._ In the Ninth Circuit, it takes the court an average of almost sixteen months to reach a final decision after an appeal is filed._ The other circuits average slightly more than ten months._ The Ninth Circuit is in last place, 53 percent slower than the other circuits in deciding appeals.

The Ninth Circuit accounts for 60 percent of all appeals, which have been pending in the nation’s circuit courts for more than 12 months.

The Ninth Circuit also accounts for one-third of all pending requests for review by the Supreme Court._ Last year, a total of 3,110 requests were made for Supreme Court review of circuit court decisions._ Ninth Circuit decisions accounted for 953 of those requests._

From 1990 to 1996, the Supreme Court struck down 73 percent of the Ninth Circuit decisions it reviewed._ The other circuits averaged 46 percent. In 1997, the Supreme Court reversed 27 out of 28 Ninth Circuit decisions.

[christ]

Originally posted by vmarks:
Because of the quantity of hideously poor decisions that the Ninth Circuit Court has made in recent years leads me to believe that a law student such as Simey is actually closer to understanding and interpreting the law than the members of that Court, who seem to have either forgotten the law they swore to uphold, or willfully ignore it.

It strikes me that your (US) justice system is broken then.

... and it is amusing that you use the proportion/number of their decisions that are overturned by the Supreme Court to point the finger at the Ninth Circuit,rather than at the SC. Surely the SC is derived from the same system as the NCC, and therefore just as likely to have failings.

[vmarks]

Originally posted by christ:
It strikes me that your (US) justice system is broken then.

... and it is amusing that you use the proportion/number of their decisions that are overturned by the Supreme Court to point the finger at the Ninth Circuit,rather than at the SC. Surely the SC is derived from the same system as the NCC, and therefore just as likely to have failings.

Indeed, the SC has failings, but they are far fewer in number than that of the NCC. You can tell when the SC is about to blunder when they start looking at international or European law for their decision instead of the US Constitution or previous US decisions, or when O'Connor employs some five-part test that only she can interpret.

[SimeyTheLimey]

Originally posted by vmarks:
Because of the quantity of hideously poor decisions that the Ninth Circuit Court has made in recent years leads me to believe that a law student such as Simey is actually closer to understanding and interpreting the law than the members of that Court, who seem to have either forgotten the law they swore to uphold, or willfully ignore it.

I can't go along with that. A sitting judge has vastly more experience than a law student. Even if you don't like what a judge decides, I don't think it can be said that a student with 3 or so years of exposure to the law has the edge.

Of course we do have recently graduated lawyers working as law clerks to these judges and its an open secret that those clerks have an awful lot to do with how the opinion comes together. But I don't think it can be said that a judge knows less about the law than a student like me. That simply isn't even remotely true.

As for these decisions, I haven't had time to read them and so I can't comment directly. I've read some commentary from a couple of law professors (Instapundit and Eugene Volokh). They seem to think that the second circuit opinion (the Padilla case) could be correct. Apparently, there is a statute that makes the Bush position shaky in that it seems to undermine Bush's authority to his inherent powers alone. There is a famous concurrence in the Youngstown Steel case by Justice Jackson where he talks about three zones. One is where Congress lends its powers to the president so that their powers combine. Another is where the president acts on his own authority, but Congress doesn't oppose him. The final one (which is where Truman was in the case) is where the president acts on his own powers but is opposed by Congress. If Bush is that third category with the Padilla detention, then he probably is in trouble.

On the other hand, those two law professors think that the 9th Circuit case will be overturned by the Supreme Court when it hears the related case from the D.C. Circuit. The D.C Circuit came to the opposite opinion and I have read that decision. It is very solid. My guess is the law professors are right and that the Supremes will uphold the D.C Circuit and overturn the 9th. But I'm just a lowly law student.

[vmarks]

Originally posted by SimeyTheLimey:
I can't go along with that. A sitting judge has vastly more experience than a law student. Even if you don't like what a judge decides, I don't think it can be said that a student with 3 or so years of exposure to the law has the edge.

Of course we do have recently graduated lawyers working as law clerks to these judges and its an open secret that those clerks have an awful lot to do with how the opinion comes together. But I don't think it can be said that a judge knows less about the law than a student like me. That simply isn't even remotely true.

Which is why I left the possibility for the Justices of the Ninth Circuit Court to be willfully ignoring the law- there's a reason why the Supreme Court overturns them so frequently, and it isn't that the Supreme Court is wildly mistaken over 70% of the time.

Certainly, having recently graduated law clerks with such influence on the opinions brings the level of the playing field closer to that of the law student, although not equal.

[SimeyTheLimey]

Originally posted by vmarks:
Which is why I left the possibility for the Justices of the Ninth Circuit Court to be willfully ignoring the law- there's a reason why the Supreme Court overturns them so frequently, and it isn't that the Supreme Court is wildly mistaken over 70% of the time.

I don't think it is correct to say that the 9th Circuit, or really any federal judge, is "willfully ignoring the law." It is very rare for any judge to flat out ignore Supreme Court precedent. I've really only ever seen it in things like tax cases, and then only very rarely. On the other hand, it is common to distinguish a case and therefore work around it, but that isn't considered "willfully ignoring the law" unless it is really a stretch.

In addition, there aren't so many precedents in this area. The main cases are old, they date from the 1950s, or before. I think that all that has happened is that Judge Reinhard went one way, and the D.C, Circuit went another. My guess is that the D.C. Circuit's approach will prevail in the Supreme Court (although, as I said, I haven't read the 9th Cir. opinion). Reinhard does have a track record of being overturned unanimously whereas the D.C. Circuit generally has a reputation for solid reasoning. But that doesn't mean Reinhard ignores the law, just that his judicial philosophy is different, and that casues him to reach different opinions with which the Supreme Court has disagreed. That's part of the way the system works, it is not uncommon for circuits to "split" like this where one goes one way, and others another.

The Supreme Court will sometimes allow an issue to "perculate" in the circuits. That is, they will allow a split to exist in order to get different judges a chance to develop the issues. Circuit court judges are not there just to mechanically apply Supreme Court precedent. They are there in part to develop the law. But of course, the Supreme Court will generally step in at some point and decide it one way or the other. That's presumably what will happen here since the Supreme Court has already granted cert in the D.C. Circuit's case. Until then, Reinhard's case is stayed.

[MacGorilla]

I guess I can't wrap my brain around how anyone in the White House that taking someone civil liberties in the name of protecting the country is correct. I mean, Jose Padilla is American Citizen caught on US soil. He deserves the right to a fair trial.

Now gitmo is a different story.

[vmarks]

Truth is, I'm pretty satisfied with the notion that Padilla gets counsel - but the NCC has made other decisions that I'm not such a fan of. Several of them. I must not be that far wrong, the Supreme Court has seen fit to overturn them. I see the NCC as bordering on Judicial Activism, and I'm not so much a fan of that.

[theolein]

Originally posted by vmarks:
Truth is, I'm pretty satisfied with the notion that Padilla gets counsel - but the NCC has made other decisions that I'm not such a fan of. Several of them. I must not be that far wrong, the Supreme Court has seen fit to overturn them. I see the NCC as bordering on Judicial Activism, and I'm not so much a fan of that.

If the SC overturns it what are you so worried about then?

[vmarks]

I think you're confused, or I've failed to make myself clear to you:

The NCC regularly screws up, and the SC cleans up after them.

As for Padilla, permitting him to have counsel was the correct decision. If the NCC made that decision, then even a broken clock is right twice a day.

[BRussell]

Originally posted by vmarks:
I think you're confused, or I've failed to make myself clear to you:

The NCC regularly screws up, and the SC cleans up after them.

As for Padilla, permitting him to have counsel was the correct decision. If the NCC made that decision, then even a broken clock is right twice a day.

If by "NCC" you mean 9th circuit court, the Padilla decision wasn't by that court.

And just because one court is often overturned by the Supreme Court doesn't mean the lower court is "screwing up." The 9th circuit court is liberal and the Supreme Court is conservative.

[vmarks]

Originally posted by BRussell:

And just because one court is often overturned by the Supreme Court doesn't mean the lower court is "screwing up." The 9th circuit court is liberal and the Supreme Court is conservative.

Sadly, that isn't true. The Ninth Circuit Court is an activist court. The Supreme Court also has made some pretty interesting decisions. O'Connor and Kennedy vote together about 70% of the time, and Scalia and Thomas vote together 99%. The rest is pretty easy to guess, but Kennedy and O'Connor side with Breyer and Bader Ginsburg from time to time. It's interesting to watch who takes a strict read of the Constitution versus who will use a more flexible contemporary view.

[SimeyTheLimey]

Originally posted by vmarks:
Certainly, having recently graduated law clerks with such influence on the opinions brings the level of the playing field closer to that of the law student, although not equal.

Do you mean it brings the level down the level of a law student? Maybe a little bit, but the judges still direct the opinion, even if they don't in reality write every word.

You are not still thinking that law school teaches students "the law" and that judges have forgotten it, are you? Law school isn't like that. Nor is practice.

If anything, law school is where you get the wild and wacky stuff thrown at you by bored law professors trying to make their academic mark. The courts more often deal with settled issues and when they do move, they tend to do so very incrementally. That's true even of the 9th Circuit.

[vmarks]

Yet, the Ninth Circuit Court does things that get it reversed quite frequently.

I grabbed the most recent example I could find, and because it is so recent, has yet to be reversed-

ATC: Cleaning Up After the Ninth Circuit in an Attempt to Save the Internet
by J. William Gurley

In 1998, President Clinton noted "Information technology now accounts for over a third of our economic growth, and government should follow one guiding principle: First, do no harm." This phrase, which translates from the Latin phrase, primum non nocere, is a signal to pay just as much attention to the "means" as the "ends." Often in complex political systems, the objective of an action can be honorable, yet the impact of said action can be completely at odds with the objective. This is largely because the tools we use to encourage behavior in such systems are often crude and imprecise.

On October 6, 2003, the Ninth Circuit Court of Appeals issued an opinion in the case of Brand X Internet vs. FCC that has the potential to delay the progress of the Internet in the United States by certainly years and potentially decades. Through its actions, the Ninth Court has "invited" the fifty independent and natural bureaucratic state-based public utility commissions directly into the fold of the Internet.

How the Ninth Circuit accomplished this feat is both curious and confusing. The case in question deals with whether or not cable lines that deliver Internet service can be considered a "telecommunications service." This wording is critical because Congress and the FCC have made it clear that states can regulate "telecommunications services" but must keep their hands off "information services." In 1998, the same year Clinton made his declaration, the city of Portland mandated that AT&T Cable, as a requirement for approval of its acquisition of TCI, open up its broadband lines to competitive carriers. Ruling on this in 2000, the Ninth Circuit stated that the city of Portland could not mandate this behavior as its jurisdiction was over cable franchises, and these broadband connections did not technically represent a cable franchise. But the Ninth Circuit did not stop there; it made one more historical, but seemingly unnecessary step. It declared cable modem service a "telecommunications service."

The FCC was compelled to react to the Ninth Circuit Court's assertion, as it flew in the face of the FCC position on this matter, as well as the clear intent of Congress and the Executive Branch (both of whom had echoed their desire to keep the Internet unregulated). Therefore in 2002, in an effort to clarify and correct the decision in Portland, the FCC ruled that cable modem services are "interstate information services" and not "telecommunication services." Seven different petitions for review of the FCC's "information services" ruling were filed in the Third, Ninth and D.C. Circuits. Under the multi-circuit rules a judicial lottery was held, and the Ninth Circuit was ironically elected to rule on the FCC's ruling.

In its decision of October 6th, the Ninth Circuit noted that the Supreme Court had ruled in Chevron that agencies should be given the benefit of the doubt in interpreting the subtleties of their own provisions, particularly when consistent with the clear intent of Congress. Despite this, and without ever questioning the intent of Congress, the Ninth Circuit relied on two key precedents to escape this Supreme Court decision and rule against the FCC. Surprisingly (or perhaps not), these two key precedents were both previous actions by the Ninth Circuit one being the Portland case. The argument, quite simply, is that the FCC had no business ruling on something that a prominent authority, none other than the Ninth Circuit itself, had already decided. Meanwhile, in a similar case across the country on October 16, a U.S. District Court in Minnesota unequivocally noted that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation."

Not lacking in hubris, Ninth Circuit Judge O'Scannlain in concurring noted, "our adherence to stare decisis (the legal doctrine that courts are restricted by precedent), even in the face of subsequent agency interpretation contrary to our Portland decision, produces a result strikingly inconsistent with Chevron's underlying principles.'" He went on to note "adherence to stare decisis in the present case appears to aggrandize, rather than limit our power over an admittedly complicated and highly technical area of telecommunications law." Judge O'Scannlain is right in that this certainly "appears" to be a jousting match of epic proportion between the Ninth Circuit and the FCC. The unsuspecting and unfortunate casualty in all of this is the Internet and everything it means to American society.

Who would benefit from increased regulation of cable modem services? The only clear answer is the fifty state public utility commissions. Perhaps fearing irrelevance as a result of the rise of the Internet, these agencies have quickly sided with the Ninth Circuit. It is not at all clear that the Internet "needs" regulation -- in fact, quite the opposite. Therefore, in a day and age where everyone is fearful of rising deficits, our government should revel in the opportunity to downsize rather than increase outdated government programs.

Who would be harmed by increased regulation of the Internet? There are four constituents that are negatively impacted as a result of such action:

1) Consumers will be faced with higher prices for Internet services. Highly regulated industries typically have complex tax structures and consistently increasing prices. Competitive technology industries typically have low or no tax structures, and constantly falling prices. Apply regulation to the world of the Internet, and you lay the foundation for things such as email taxation, instant messenger taxation, VOIP taxation, per minute fees, bandwidth monitoring, and controlled pricing (once again, read "increased" pricing at something like 5% per year). Requiring Internet service companies to interact with fifty different state agencies every time they "tie their shoe" will undoubtedly add costs and complexities to their lives, which will in turn result in higher costs and slower innovation/deployment. California consumers, already accustomed to paying the highest gas prices in the country, will quickly enjoy the highest Internet fees as well.

2) The growth in information technology businesses will slow dramatically. The Ninth Circuit decision, if it stands, will have horrible consequences for Silicon Valley. The growth of the Internet and the numerous resulting businesses and services are the unquestioned drivers of our current economy. Slow the penetration of broadband through the imposition of increased regulation and all of high tech will suffer. The Ninth Circuit decision pours concrete on the number one facilitator of technological growth in the U.S.

3) American competitiveness will suffer. Household broadband penetration in the U.S. is quickly falling behind innovative countries like Korea and Japan. While we are struggling to move beyond 20% broadband penetration, Korea is soaring past 60% on its way to 70%. Moreover, the connections in Korea are built around fiber optics and are resultantly many times faster than traditional U.S. broadband. These increases in Internet performance have resulted in increased usage of the Internet for such things as telecommuting and online education. As the U.S. faces the real loss of white-collar jobs to the hard working, but lower wage connected workers of Asia, one cannot help but wonder what political leader would aim to intentionally slow the roll-out of the Internet inside the U.S. Additionally, the key driver of the U.S. economy over the past twelve months has been productivity based. Why mess with the underlying network that is essential to this important metric?

4) Competitive RBOCs object as well. While one might assume that all of the entrenched Bell monopolies would be in favor of regulation for cable modem services, this would be an erroneous perspective. Verizon, one of the most competitive of all RBOCs, was quick to point out that it believes that cable modem services should be exempt from regulation. Make no mistake, it wants regulatory parity, but it wants it through decreased regulation on DSL not increased regulation on cable services. Likewise, a spokesman for BellSouth recently noted, "The Internet, and for that matter cellular service, has thrived because of limited regulation. Economic regulation is crippling this industry (telecommunication services)."

Some will argue, as does Judge Sidney Thomas of the Ninth Circuit, that opening the cable networks to competitive carriers will directly benefit consumers. The enormous problem with this argument is the prima facie evidence suggesting the opposite. Clearly stated in the Ninth Circuit opinion, 70% of all broadband users use cable modem services as compared with 30% for DSL. Cable companies, free to compete without the shackles of regulation, represent over two-thirds of all broadband users in the U.S. DSL, supposedly advantaged by its open connectivity and therefore supposed increased competitiveness, represents less than one-third. If regulated open-access is such a great thing, why are cable modems such a compelling value proposition for consumers? And why were the RBOCs slow to roll out DSL?

[vmarks]

CONTINUED

The bottom line is that we tried an experiment in DSL and it failed. Attempting to increase competition by mandating that a company invest in infrastructure and then share that infrastructure with competitors is simply not a market-based solution. Companies, naturally motivated to take market share, not give it away, are simply not effective at appropriately enabling competition. If you want to increase competition, add holistic competitors, not partial ones. This type of solution had a huge positive impact when PCS licenses created a third cellular alternative in most U.S. cities. Solutions such as cable overbuilding can accomplish this as well. Notably, a WISP in Cerritos, California recently announced an eight square mile 802.11 coverage zone based on Cellular-WiFi equipment from Tropos Networks*. This solution will offer ubiquitous broadband of greater than 1MB throughout the entire city. These solutions are the ones that will successfully advantage the customer while avoiding the overt dangers of increased regulation.

We should all know by now that rather than increasing competition, regulation typically reinforces monopolies and oligopolies. Startups will not and cannot prevail in heavily regulated industries. They lack the required resources and capital to manage fifty different utility commissions on a hundred different regulatory issues. For this same reason, you will never see a startup deliver an automobile in the U.S. as the regulatory red tape swamps all efforts. Increased regulation will do nothing more than ensure that new competitors and innovative solutions are permanently locked out of the market.

There are three ways to put an end to this potentially catastrophic problem. The first is for the Ninth Circuit to clean up its own mess in an upcoming large panel review known as an en banc review. The likelihood of success here is slim. The Ninth Circuit is well known for its reputation as the most over-turned appeals court in the nation, and it is doubtful it would pick now to jeopardize its record. Luckily, there are two more solutions that exist beyond the Ninth Circuit. For starters, the Supreme Court could once again correct the Ninth Circuit. But perhaps more appropriately, Congress should step in and legislate to ensure that this type of misunderstanding never happens again. As Clinton and many others have noted, the future of the Internet is simply too essential to our national interests to suffocate it with unnecessary regulation.

Judge O'Scannlain made a peculiarly ironic but accurate warning in the Ninth Circuit opinion. "Regardless of one's view of the wisdom of the FCC's declaratory ruling, it cannot be denied that our holding today effectively stops a vitally important policy debate in its tracks, at least until the Supreme Court reverses us or Congress decides to act." For those in Washington that do NOT want to (1) increase the likelihood of higher Internet access rates and increased costs for incremental services, (2) dampen the growth of Internet services and all the companies that benefit from that revolution, and (3) negatively impact American competitiveness, we hope you heed his urgent call.

*Benchmark Capital has an investment in Tropos Networks.