High Court Nominee Roberts Well Known in Communications Circles
While his conservative leanings have center stage, U.S. Supreme Court nominee John Roberts is better known among Washington communications attorneys for his telecom and media issues work as a judge on the U.S. Appeals Court, D.C., and a Hogan & Hartson attorney representing Fox in a successful challenge to FCC media ownership rules. Attorneys termed Roberts well-liked by people on both sides of the political spectrum, although communications issues don’t lend themselves to political divisions.
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In the only FCC-related case attorneys say reflects Roberts’ “strict constructionist” views, he wrote a 2003 order upholding an FCC decision to require tuners in digital TVs. The case centered on whether the FCC had authority under the 1962 All Channel Receiver Act to impose the tuner requirement, and the court ruled it did. Roberts’ opinion called the tuner requirement a “reasonable exercise” of FCC authority under the law. “The Commission is not crying wolf,” Roberts wrote in the Oct. 2003 opinion: “Widespread ability among consumers to receive DTV signals is a prerequisite to meeting Congress’s 2006 target date for the completion of the DTV conversion and the cessation of analog broadcasting” (CD Oct 29/03 p1).
In Sept., 2003, as a member of the panel hearing Verizon arguments against identifying computer users suspected of copyright infringement, Roberts grilled a Verizon attorney about the illegality of using copyrighted material. “Is there any legitimate purpose” for individuals making 600 copyrighted works available via file sharing networks?” Roberts asked during oral argument (CD Sept 17/03 p1). Roberts and 2 other judges issued an opinion in RIAA v. Verizon 2 months later saying Verizon needn’t comply with RIAA subpoenas to identify suspected peer-to-peer file sharers (CD Dec 22/03 p1). The decision said subpoenas falling under a section of the Digital Millennium Copyright Act may be issued only to an ISP engaged in storing infringing materials or facilitating infringing activity.
Electronic Frontier Foundation (EFF) Legal Dir. Cindy Cohn said the RIAA decision had more to do with statutory interpretation than copyright infringement, so that ruling doesn’t illuminate Roberts’ stance on IP issues. “What it does tell you is that he’s someone who reads statutes very closely and is going to hue very closely to what the laws say,” Cohn said. The transcripts indicate Roberts was “very engaged in the issues at oral argument and, importantly, also appeared to understand the technology and wasn’t afraid of the technological questions,” EFF Staff Attorney Corynne McSherry told us. EFF also is studying Roberts’ relatively short judicial record and briefing background for clues on how he feels about privacy and 1st Amendment issues -- but so far haven’t found much, she said.
Roberts also was on appeals court panels dealing with such detailed issues as a bidder’s challenge to FCC auction rules, competitive access to ILEC transport facilities, reselling AT&T 800 service, a Verizon request for forbearance authority from Sec. 271 unbundling requirements and wireless tower construction.
In private practice before joining the court, Roberts in 2002 helped Fox win a challenge to FCC media ownership rules that was among cases leading to a recent bid by then-FCC Chmn. Michael Powell to rewrite the rules, an attorney said. The D.C. Circuit remanded the ownership rules to the FCC, serving as the basis for the FCC’s later revision. In another case, a communications attorney remembers, Roberts showed up at a meeting at the solicitor gen.’s office as part of the legal staff representing Playboy. The attorney told Roberts he was surprised to see him represent that client. Roberts responded that he was representing the 1st Amendment, the attorney said.
Communications attorneys consistently referred to Roberts as a “brilliant” or “excellent” attorney. “No one does better oral arguments,” said an attorney, recalling Roberts as a deputy solicitor gen. under the first President Bush. Another described Roberts during his S.G. days as having “an amazing legal mind that sees through issues.” He’s also “kind of a nice guy,” she said. “I thought several weeks ago that if the Administration wanted someone who was conservative but who no one could question about qualifications or personality, it would have to be John Roberts, a communications attorney said. “He has a lot of friends in the legal establishment,” he said.
As a conservative, Roberts may hold views on the roles of the states to pose an interesting situation for video franchising, a communications attorney said. “He could support stronger rights for the states than the FCC,” the attorney said. Former FCC Chmn. and attorney Richard Wiley, who said he knows Roberts through bar association activities, said he would be surprised if Roberts wasn’t confirmed: “He has great judicial temperament.” Roberts also has a tie to satellite issues, an attorney said; his wife, Jane, a partner at Pillsbury Winthrop Shaw Pittman, represents satellite firms and at one time had XM Radio as a client.