Legal challenges to an FCC draft "internet freedom" order face a daunting task, said supporters of Chairman Ajit Pai's proposals, and one analyst agreed, but some net neutrality advocates are more hopeful of a challenge's prospects. Pai last week circulated a draft to undo Title II broadband classification and net neutrality regulation under the Communications Act, and is planning a Dec. 14 vote; fellow Republican commissioners are supportive, minority Democrats opposed (see 1711220026 and 1711210020).
Major Questions Doctrine
White House Thursday confirmation that President Donald Trump intends to fill the three vacant FTC commissioner seats, including to make Paul Weiss antitrust lawyer Joseph Simons permanent chairman (see 1710190001), likely means the FTC can move forward with its long-expected shift toward GOP-sought policy goals in tech and telecom, industry officials and lobbyists told us. The commission has faced a 1-1 deadlock since January under Republican acting Chairman Maureen Ohlhausen and Democratic Commissioner Terrell McSweeny.
The FCC has become a friendlier place since he took over in January, Chairman Ajit said at the Ronald Reagan Presidential Library in Simi Valley, California. Pai cited his trip to Florida last month with Commissioner Mignon Clyburn to inspect damage from Irma as an example of Republicans and Democrats working together (see 1709180034).
A tweet from President Donald Trump Wednesday condemning “NBC and the Networks” for airing “Fake News” and questioning whether it would be appropriate to “challenge their License” was seen as a possible threat to freedom of the news-media yet extremely unlikely to lead to any actual action, media scholars and communications attorneys told us.
With a Senate confirmation vote expected Monday giving Chairman Ajit Pai another five years at the FCC (see 1709280056), some observers said the agency may be gearing up for a November vote on the net neutrality NPRM, instead of waiting until December. Pai wants to get net neutrality behind him so he can focus on other issues, observers said. Officials from industry, at the FCC and on Capitol Hill said Friday a November vote may be ambitious. The FCC is still sorting through the millions of comments.
The FCC 2015 net neutrality and broadband reclassification order came under attack from critics asking the Supreme Court to review the decisions of the U.S. Court of Appeals for the D.C. Circuit upholding the order, as expected (see 1709280029). The American Cable Association, AT&T, Daniel Berninger, CenturyLink with USTelecom, CTIA and NCTA filed cert petitions challenging the commission's order and appealing D.C. Circuit affirmations. TechFreedom said it also expected to file Thursday, the deadline.
Some recent court decisions have “nibbled away” at the concept of Chevron deference, attorneys from the FCC Office of General Counsel said at an FCBA CLE Monday evening. The legal principle that courts should give deference to expert agencies on matters of interpreting legislation is “in flux,” said Litigation Division Chief Jacob Lewis. “Chevron lives, it’s still healthy,” Lewis said, but the doctrine is facing “more serious challenges.
The Supreme Court will hear what experts are calling a landmark case that could decide whether law enforcement agencies will be required to get a warrant to obtain historical cellphone location data of individuals. The American Civil Liberties Union, co-counsel in the case, noted Monday the high court granted a writ of certiorari to review Carpenter v. U.S., in which a man was convicted of several armed robberies in and around Detroit based partially on the cellsite location information (CSLI) obtained through court orders.
Now that the U.S. Court of Appeals for the D.C. Circuit won't hear en banc review of FCC net neutrality regulation (see 1705010038), focus shifts to the Supreme Court. Conventional wisdom is justices are unlikely to grant cert to hear an appeal, especially since the FCC is pursuing a do-over. Some opponents of the order think conventional wisdom could be wrong. Industry parties that sought en banc D.C. Circuit review didn't comment, including USTelecom, CTIA, AT&T, CenturyLink, NCTA, American Cable Association and Alamo Broadband.
A court denial of further challenges to the FCC 2015 net neutrality order was decided 6-2 by the active judges of the U.S. Court of Appeals for the D.C. Circuit (see 1705010013). The six judges voted Monday to deny petitions for en banc rehearing of a June ruling by a three-judge panel that upheld the FCC order, which also reclassified broadband to be under Title II of the Communications Act. Two judges dissented and three others didn't participate in the ruling in USTelecom v. FCC, No. 15-1063.