This issue of Infrastructure features one article addressing the central question of whether to regulate—in this case, business data services—and another addressing whether transportation service worker arbitration agreements are protected by the Federal Arbitration Act (“FAA”).
August 13, 2019
Editor’s Column
By William R. Drexel
In Eighth Circuit Largely Affirms FCC Deregulatory Pirouette on Business Data Services, Chris Binnig, Ty Covey, and Kara Gibney analyze the Eighth Circuit’s decision largely affirming the 2017 FCC decision to end price regulation of business data transport and all high-capacity data services and to adopt a framework to guide ending price regulation for the “last mile” channel terminations for lower-capacity business data services. The article explains how the court rejected most of the procedural challenges to the FCC order, except for one relating to whether proper notice had been provided about the possibility of treating low-capacity transport services differently than the low-capacity, last-mile connections. More substantively, the court analyzed numerous challenges to the FCC’s adoption of criteria for deregulating low-capacity, last-mile data service connections and the cost-benefit analysis associated with any deregulatory determination. The court deferred to the expertise of the agency in upholding deregulation for low-capacity service connections when there are competitors within a half mile and a cable company in the same census block as those last-mile connections.
In our second article, Supreme Court Surprise: Independent Truckers Escape Arbitration, Jay Range contrasts the Supreme Court’s broad application of the FAA in Epic Systems with its narrow application in New Prime. The article notes that Section 1 of the FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from the statute’s arbitration protections. “Workers engaged in foreign or interstate commerce” has been construed by the Court to apply more generally to “transportation workers.” In New Prime, Mr. Oliveria was an independent contractor driving for Prime. The Court nevertheless applied the transportation-worker exclusion to refuse to mandate arbitration of Mr. Oliveria’s collective action compensation dispute with Prime. The article also highlights the many open questions about the scope of “transportation workers” and the extent to which it will be deemed outside the purview of the FAA in the new gig economy.
We hope you enjoy this issue. If you have suggested topics for future issues or would like to submit an article for consideration, please contact me at [email protected].