The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.
Major Questions Doctrine
Maurine and Matthew Molak filed a petition Thursday seeking review of a July FCC order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2407180024), in the 5th U.S. Circuit Court of Appeals. The Molaks previously sought reconsideration of the July order, which three public interest groups and T-Mobile opposed last week (see 2408280029).
ISPs challenging the FCC’s updated data breach notification rules made their case at the 6th U.S. Circuit Appeals Court about why the rule should be overturned. The filing elaborates on their argument that the agency exceeded its Communications Act authorities when it adopted the rule in December. The Ohio Telecom Association (docket 24-3133), the Texas Association of Business (docket 24-3206) and CTIA, NCTA and USTelecom (docket 24-3252) brought the challenge. The 6th Circuit is considered among the most conservative federal circuits.
The U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (see 2406280043) doesn’t foreclose the FCC's ability to act on net neutrality and other important public issues, Stephanie Joyce, senior vice president-chief of staff at the Computer & Communications Industry Association, said during a Broadband Breakfast webinar Wednesday.
It's "astonishing that the FCC is once again seeking to impose heavy-handed regulation on internet access," TechFreedom and the Washington Legal Foundation told the 6th U.S. Circuit Court of Appeals Wednesday. The groups urged the court in an amicus brief Wednesday that it should reverse the commission's order restoring Title II classification of broadband (see 2408130001). Their brief said the "only question for this court" is whether the FCC has the statutory authority to act (docket 24-7000), arguing the order is a violation of the major questions doctrine.
The FCC "must point to clear congressional authorization" before claiming it can reclassify broadband as a Title II telecom service under the Communications Act, a coalition of industry groups told the 6th U.S. Circuit Court of Appeals in its challenge of the commission's net neutrality rules. The court granted a temporary stay of the rules earlier this month (see 2408010066). The petitioners -- ACA Connects, CTIA, NCTA, USTelecom, the Wireless ISP Association and several state telecom associations -- said in their opening brief filed late Monday (docket 24-7000) that the "best reading of the federal communications laws forecloses the commission’s reclassification."
FCC Chairwoman Jessica Rosenworcel vowed she will continue fighting for the commission's net neutrality order following the 6th U.S. Circuit Court of Appeals' decision that stayed the rules Thursday (see 2408010065). "The American public wants an internet that is fast, open and fair," and Thursday's decision "is a setback, but we will not give up the fight for net neutrality," Rosenworcel said.
Members of the congressional Universal Service Fund revamp working group are considering whether, and how much, the 5th U.S. Circuit Court of Appeals' ruling will affect their rollout of a framework for overhauling the program. The court ruled last week that the FCC's USF contribution factor is unconstitutional (see 2407240043). Experts believe lawmakers will likely factor the ruling into the framework, but it could be moot should the U.S. Supreme Court reverse the decision on appeal (see 2407260044). Uncertainty about USF’s future will likely extend the working group’s already lengthy process, lobbyists told us.
The FCC "offers no plausible reason why Congress would have used classic disparate-treatment language to create a disparate-impact regime," a coalition of industry groups said in a reply brief to the 8th U.S. Circuit Court of Appeals Monday. The brief explained the Minnesota Telecom Alliance's challenge of the FCC's digital discrimination rules (docket 24-1179). The U.S. Chamber of Commerce, NCTA, Wireless Infrastructure Association National Multifamily Housing Council, ACA Connects, Wireless ISP Association and several state telecom associations also noted that the major questions doctrine "confirms" the commission lacks "the authority to regulate non-ISPs" (see 2407080012). In a separate brief, the Legal Defense Fund, Asian Americans Advancing Justice, the American Civil Liberties Union, Communications Workers of America and the United Church of Christ Office of Communication said that the FCC would "fail to achieve Congress's mandate" of facilitating equal access without establishing a disparate-impact liability. Section 1754 of the Infrastructure Investment and Jobs Act "also furthers the FCC’s ability to ferret out intentional discrimination," the groups said.
Congressional GOP leaders demanded Thursday that the FCC and other independent agencies adhere strictly to its narrowed leeway of interpreting federal laws following the U.S. Supreme Court’s June Loper Bright Enterprises v. Raimondo decision and other recent rulings that rein in federal agencies (see 2407080039). House Commerce Committee Chair Cathy McMorris Rodgers of Washington and Oversight Committee Chairman James Comer of Kentucky pressed the FCC, FTC and Commerce Department to understand the “limitations” Loper “set on your authority” given it overruled the Chevron doctrine. Meanwhile, FCC Commissioner Brendan Carr pooh-poohed critics of Loper who argue it hamstrings regulatory agencies. Communications-focused lawyers at an Incompas event eyed a range of legal challenges to recent FCC actions that could face improved prospects because of Loper.