High Court Nominee Kavanaugh Seen Complicating FCC Regulation; Battle Lines Form

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.

Kavanaugh's views on Chevron and net neutrality intermingled with higher-profile issues like abortion, same-sex marriage and the limits of executive power in early Hill reaction. Senate Commerce Committee Chairman John Thune, R-S.D., and other Republicans were bullish on Kavanaugh's Chevron stance. Senate Minority Leader Chuck Schumer, D-N.Y., and other Democrats harangued the nominee for his dissent in the D.C. Circuit's en banc affirmation of the 2015 FCC Title II net neutrality order in USTelecom (2017).

Kavanaugh could become a high court leader on communications issues, some said. He "is a major thinker" on administrative law and "his willingness to question everything from congressional ambiguity in agency rulemakings to the proper judicial remedy in rule challenges will make him a force," emailed Enrique Armijo, Elon University School of Law academic dean and associate professor. "The only question is whether he can get four other Justices to follow him -- and the Court’s willingness to grant review in cases in which he dissented on the D.C. Circuit seems to indicate that he will.” Kavanaugh would be "the new chairman of the Supreme FCC," New Street Research wrote investors.

Along with Justice Neil Gorsuch, Kavanaugh would "put a lot of pressure on the Chevron doctrine, limiting the ability of the FCC "or any regulators to freelance," cable consultant Steve Effros said. "That's also going to put pressure on Congress to actually deal with new technologies." In his USTelecom dissent, Kavanaugh argued the "major" rules didn't deserve deference, lacked clear congressional authorization and violated ISP First Amendment rights.

"Kavanaugh has been the leading voice on appeals courts for limiting" Chevron, said TechFreedom President Berin Szoka, who noted his group challenged FCC discretion on a "major question" of economic and political significance. "He decried blind deference to bureaucrats as an abdication of judiciary responsibility." While Kavanaugh has "clear concerns" about Chevron, "I would expect him to approach that issue in a highly sophisticated and nuanced manner," emailed communications lawyer Andrew Lipman of Morgan Lewis.

The "major rules" approach isn't necessarily negative for net neutrality, said Steptoe & Johnson satellite and communications lawyer Pantelis Michalopoulos, who believes insufficient attention has been paid to the doctrine's implications: "It's not a one-way street. A deregulatory rule is no less a rule, which means the [2017] restoring internet freedom rule could encounter an obstacle under Judge Kavanaugh's formulation." Yet Kavanaugh also wrote in USTelecom the best statutory read is that broadband should be classified under Title I, as the current FCC did in rolling back net neutrality regulation.

First Amendment

Kavanaugh believes key programming duties violate cable speech rights because operators lack market power.

Cable rules such as must-carry and program-access are likely "pretty much going away" under Kavanaugh's broad view of First Amendment rights, Effros said. The nominee's decisions "indicate he doesn’t treat regulations of communications industries as just run-of-the-mill 'economic' regulations, and that rules that restrict such businesses have inherent First Amendment implications," emailed Davis Wright First Amendment lawyer Bob Corn-Revere. "This is hardly a 'fringe' concept in First Amendment law, but it is understandable that it makes would-be regulators nervous."

"Kavanaugh's positions are a nightmare," emailed Free Press Policy Director Matt Wood. "His unhinged and extremist views are a menace to a broad range of rights and liberties. ... Having a justice who thinks that the companies we pay to carry our speech should also get to decide what we say is an extraordinarily dangerous proposition, for people across the political spectrum."

"It will take a number of years for changes to core First Amendment doctrine, Chevron deference and other legal doctrines to be changed," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counsel. "Telecom regulation will not disappear overnight," agreed New Street Research. "There will be an increased risk that it will enter the same zone as other issues: the law will be whatever the courts say it is. The legality of anything the FCC does that requires a carrier to carry some form of traffic will now face a much more significant risk of being overturned, essentially narrowing the zone of regulation."

The nomination is expected to force Kavanaugh to recuse himself from considering challenges to the net neutrality rollback order, said Lisa Hayes, Center for Democracy & Technology general counsel. She and Schwartzman expect Kavanaugh, if confirmed, would be recused from considering cert appeals of the D.C. Circuit's affirmation of the 2015 net neutrality order. "Any substantive consideration of that case requires five votes," emailed Schwartzman. "While only 4 votes are needed to grant cert and hear a case, there may be a vacatur issue, which would require 5 votes."

Kavanaugh could raise the profile of communications law and increase scrutiny. He likely would "be more inclined than other Justices to vote to grant cert on telecom and media related cases," emailed Lipman, who suggested Kavanaugh could "take the lead in drafting" majority opinions or dissents. Kavanaugh "represents, along with Justice Elena Kagan, the strongest combination of tech savviness, administrative law expertise and depth of legal scholarship," emailed Stuart Brotman, University of Tennessee media management and law professor.

Hill Divide

Senate Judiciary Antitrust Subcommittee ranking member Amy Klobuchar, D-Minn., made concerns about Kavanaugh's views on net neutrality a key part of the Democratic Caucus' case Tuesday against the nominee. Kavanaugh's dissent showed he believed the FCC “couldn't even do anything to regulate net neutrality, and that in fact the rights of the cable companies should be protected,” Klobuchar said during Senate Democratic leaders' weekly news conference. That opinion is part of a clear pattern of anti-consumer rulings by Kavanaugh and it's going to be “our job to look at the record” the nominee has built at the D.C. Circuit and in his previous roles, she said.

Schumer and several telecom-focused Democrats also criticized Kavanaugh. Senate Consumer Protection Subcommittee ranking member Richard Blumenthal, D-Conn., told reporters he believes net neutrality is one among many consumer protection issues on which Kavanaugh “has been hostile to the public interest in the statutory framework. Kavanaugh's USTelecom dissent showed the nominee “frequently sides with powerful interests rather than defending the rights of all Americans,” Schumer tweeted.

The ruling shows what side Kavanaugh is “really on,” Sen. Ed Markey, D-Mass., tweeted Tuesday. It's “now more important than ever that Congress” pass the Markey-led Congressional Review Act resolution aimed at reversing the order rescinding 2015 net neutrality rules so the high court “doesn't get the last word,” the senator later added. The Senate cleared its version in May 52-47 while supporters of the House companion (House Joint Resolution-129) have been pushing a discharge petition aimed at forcing a floor vote (see 1806130047). The petition had 175 signatures Tuesday, below the 218 needed.

Senate Republicans believe it's important “that there be judges who … apply the law and the Constitution,” Thune told reporters: Kavanaugh's record on Chevron demonstrates “that when it comes to the regulatory agency fiat, he's going to defer to Congress and the laws of the land as opposed to something that comes out of an executive agency. To me that makes sense, that's adhering the law” and applying the Constitution, “which is what we want a judge to do.” Other prominent Republicans, including Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Orrin Hatch, R-Utah, didn't mention tech or telecom issues in laudatory statements.

Telecom stakeholders raised a range of political issues. Kavanaugh “would make it extraordinarily difficult for Congress, federal agencies, or the states to protect consumer privacy, or to address increasing concerns such as the proliferation of fake news, or to prevent network operators or digital platforms from censoring speech,” said Public Knowledge Senior Vice President Harold Feld. The Communications Workers of America cited what it views as Kavanaugh's pattern of ruling “ruling against workers and their families” in favor of top sector companies like AT&T and its newly acquired subsidiary channel CNN. National Religious Broadcasters strongly endorsed Kavanaugh based in part on his “track record that reveals a judicial philosophy honoring the U.S. Constitution, including fundamental freedoms of speech and religion.”