The ways the FCC and antitrust agencies like DOJ evaluate deals can diverge widely, said experts Saturday at American University-hosted annual Research Conference on Communications, Information and Internet Policy. Steptoe & Johnson's Jon Sallet said the FCC's big question is often what range of policy options are "reasonable" under the Chevron doctrine of judicial deference to agencies, and what record would support a decision made within that range, while at DOJ the focus was on how does one convince a judge, with the burden of proof being on government to prove its case.
Major Questions Doctrine
Determining the right balance between national security and privacy rights will remain “an enormous issue” that the Supreme Court and lower courts will need to continue to grapple with over the next 10-20 years, high court nominee Brett Kavanaugh said during the Senate Judiciary Committee's Thursday confirmation hearing. Kavanaugh continued to discuss Chevron deference by courts to agency expertise and said he would maintain an open mind on calls to open the Supreme Court to live media coverage. Kavanaugh faced questions Wednesday on Chevron and his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1705010038 and 1809050061).
Supreme Court nominee Brett Kavanaugh attempted to parse his views on deference by courts to agency expertise under the Chevron decision, saying he's not totally opposed to the precedent, during the Senate Judiciary Committee's Wednesday confirmation hearing session. Kavanaugh's views on Chevron as a judge on the U.S. Court of Appeals for the D.C. Circuit mean many in the communications sector believe he would raise the bar for FCC regulations (see 1807100020). Kavanaugh defended his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC, as expected (see 1705010038 and 1808310045). Questions continued into the evening.
Senate Judiciary Committee members are certain to bring up Supreme Court nominee Brett Kavanaugh's views on the Chevron doctrine and net neutrality during his confirmation hearing, lawmakers and lobbyists told us. They cautioned those issues will compete for attention with higher-profile ones like limits of executive power, abortion and same-sex marriage, as happened during 2017 confirmation hearings for now-Justice Neil Gorsuch (see 1703200051 and 1703210065). Kavanaugh's hearing begins at 9:30 a.m. Tuesday in 216 Hart and continues through Thursday or Friday.
Supreme Court nominee Brett Kavanaugh is likely to raise the bar for FCC regulations if confirmed, attorneys said after President Donald Trump nominated the appellate judge Monday evening to replace retiring Justice Anthony Kennedy (see 1807090060). Not only would Kavanaugh be expected to seek to rein in Chevron deference to agency expertise, but he also is seen as a strong advocate of industry First Amendment free-speech rights, based on his lengthy record at the U.S. Court of Appeals for the D.C. Circuit (see 1807040001). He believes broadband is a Communications Act Title I information service, not a Title II telecom service subject to common-carrier regulation. Some on Capitol Hill and among communications groups oppose the nominee.
Supreme Court prospect Brett Kavanaugh has made a mark in communications law in 12 years as a U.S. Court of Appeals for the D.C. Circuit judge. In a dissent from a ruling affirming the FCC's 2015 net neutrality order, he argued the regulation lacked clear congressional authorization and violated the First Amendment. The agency shouldn't get Chevron deference on "major" rules and broadband ISP speech rights can't be restricted absent a market power showing, he wrote. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders, giving him far more telecom and media legal experience than any other contender to replace retiring Justice Anthony Kennedy (see 1806280018).
The communications law impact of Supreme Court Justice Anthony Kennedy's retirement remains largely a mystery (see 1806270070) as the Senate gears up for a confirmation battle. Not only is there a guessing game over who President Donald Trump will nominate as a replacement, but Kennedy's views aren't easy to pigeonhole, attorneys told us. He's "been all over the map," emailed TechFreedom President Berin Szoka.
In what some called an unusual move, FCC Commissioner Mike O'Rielly used the agency's blog Friday to defend each of the commission's media regulations under Chairman Ajit Pai against criticism that such actions are benefiting Sinclair. Recounting a trip last week to the Pearl TV-led ATSC 3.0 model-market project in Phoenix (see 1805090082), O'Rielly fleshed out his view that the Pai-led commission isn't trying to help only Sinclair, but broadcasters overall when circumstances dictate.
The FCC voted 3-2 to undo Title II net neutrality regulation under the Communications Act at a Thursday meeting, as expected. The ruling and orders approved by commissioners along party lines will return broadband classification to a Title I framework and eliminate 2015 regulation. The item as described by a release and officials' statements appears substantively the same as a draft. Tweaks narrowed the legal basis of a transparency rule and bolstered pre-emption of state broadband regulation.
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).