In article <telecom23.543.10@telecom-digest.org>, the esteemed
moderator pontificates:
> [TELECOM Digest Editor's Note: Mr. Sullivan, I thought the rulings of
> a federal agency had the effect of law.
You, sir, "don't know what you don't know."
Enacted regulations of a Federal agency have the 'force of law',
*only* when there is a statute that enumerates the area(s) for which
the regulations of that agency have the force of law. The 'usual'
case is that the law says that you must obey the regulations
established by the agency in carrying out the duties assigned to it by
that law, and that violation of those regulations is a violation of
_that_ statute.
Separately, there are 'administrative rulings', resulting from a
'trial equivalent', before an 'officer' of a federal agency. You're
stuck with whatever they said in the ruling, *unless* you choose to
appeal the ruling, into the regular court system.
Now, the FTC, has _no_ *direct* enforcement powers whatsoever. Their
_only_ recourse, where they believe their 'rules' have been violated,
is to GO TO COURT, and _ask_ the court to order enforcement, or assess
penalties. It is the *court* that makes the final determination
whether a violation has _actually_ occurred, as well as what the
'appropriate' remedy is.
Currently the 'backlog' in that court is running 15-18 months.
> Or perhaps, fact that the FTC has filed this lawsuit will influence
> the judge already hearing the matters at hand. PAT]
Again, the court system *doesn't*work*that*way*.
_Legally_, the filing doesn't mean anything other than the FTC
_thinks_ it has a case. This is _not_ "proof" of wrongdoing that can
be introduced in any _other_ proceeding. Any attempt to cite the FTC
filing would be dismissed out-of-hand as 'hearsay'.
Prior to the actual trial/ruling in the FTC suit, the _only_ way for
their 'evidence' to influence any other Norvergence-related case would
be for the FTC, themselves, to file an 'amicus curiae' (friend of the
court) brief with the court hearing that other case -- setting out
_their_ evidence of wrong-doing by the Norvergence-associated party.
This is, unfortunately, =NOT= at all likely to happen. It would hurt
the prosecution of FTC's own case, and they have a policy of -not-
intervening in 'private' lawsuits.
[TELECOM Digest Editor's Note: Well I don't know about you, but if the
FTC or FCC or other federal agency accused me of some wrong doing, I
would consider it prudent to stop whatever I was doing. I would not be
inclined to continue my activities for the 15-18 months or so it would
take for the agency to get me into court. Maybe there is a rare case
somewhere where a government agency loses a case, but it is quite
rare. PAT]
Robert Bonomi (bonomi@host122.r-bonomi.com)