Telecom, Tech Watching Senate Consideration of Supreme Court, FCC, FTC Nominees

Senate maneuvering on newly named Supreme Court nominee Ketanji Brown Jackson, FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya is expected to draw many telecom and tech policy stakeholders’ attention in the coming weeks. President Joe Biden nominated Jackson, a U.S. Court of Appeals for the D.C. Circuit judge, Friday to replace retiring Supreme Court Justice Stephen Breyer. Jackson has little record on communications law matters but has played a larger role on administrative tech-focused legal matters, legal experts said.

The Senate Commerce Committee plans a Thursday executive session that will include votes on Sohn and Bedoya amid continued uncertainty about their confirmation prospects. Others up for votes include National Institute of Standards and Technology director nominee Laurie Locascio and International Trade Administration nominee Grant Harris. The meeting will begin at 10 a.m in 253 Russell, Senate Commerce said. The panel postponed votes on Sohn and Bedoya earlier this month amid news that Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., will be absent while he recovers from a stroke (see 2202010070).

Senate Commerce’s decision to reschedule votes now on Sohn and Bedoya reflects a late shift in expectations about Lujan’s timeline for returning to the Senate, Senate aides and lobbyists told us. Lujan is now believed likely to return to the chamber as soon as Monday, far sooner than the mid-March timeline expected last week. Lujan and all 13 other Senate Commerce Democrats’ votes would be needed for the panel to tie 14-14 on both nominees given expectations that no Republicans will support them. Lujan’s office didn’t comment on his return date.

The rescheduled Sohn vote also reflects a bid by Senate Commerce Chair Maria Cantwell, D-Wash., to flesh out whether panel Republicans will move to boycott a bid to advance her to the chamber floor, lobbyists said. Commerce Republicans have remained publicly uncommitted (see 2202240067) on whether they would boycott a vote on Sohn, as they threatened earlier this month. Cantwell feels she “has to force the question” because Republicans “won’t decide” on a boycott “until she does,” one lobbyist said. Cantwell “can always pull” Sohn off the markup at the last minute.

Senate Judiciary “will begin immediately to move forward on” Jackson’s “nomination with the careful, fair, and professional approach she and America are entitled to,” said Chairman Dick Durbin, D-Ill. Her “achievements are well known” to the committee, “as we approved her to the D.C. Circuit less than a year ago with bipartisan support” (see 2106070073). Democratic leaders are hoping to expedite her confirmation similarly to the chamber’s 2020 process for confirming Justice Amy Coney Barrett, which took 30 days.

“It’s critical that” Jackson or any other Supreme Court nominee “receive the most thorough and rigorous vetting,” said Senate Judiciary ranking member Chuck Grassley, R-Iowa. “Our review will be as fair and respectful as it is complete and comprehensive.” That “is what this process demands and what the American people expect,” he said. Senate Minority Leader Mitch McConnell of Kentucky and other Republicans raised concerns Friday about Jackson’s record.

Jackson has little record on communications law. She was on a three-judge panel that in January heard a challenge to an FCC decision on AWS-3 bidding credits brought by designated entities SNR Wireless and Northstar Wireless, but the court hasn't ruled (see 2201140032). She will likely play some role in shaping the Supreme Court’s consideration of new challenges to the Chevron doctrine, experts said. Some expect the top court’s conservative majority to pare down the doctrine without explicitly overruling it (see 2101220056). Jackson wrote more than 500 opinions as a lower court judge.

Administrative Law

Jackson's record on administrative law is “more well established than it is on communications law,” said Digital Progress Institute President Joel Thayer. “She takes a rather apolitical stance on things so long as the agency follows” the Administrative Procedure Act, he said: “She appears to have a reverence for agency rulings and would most likely support cases that upheld or even strengthen Chevron than find ways to chip away at it.”

As a lower court judge, Jackson “has applied the Chevron doctrine quite a few times. She’s done so rather straightforwardly, not giving any indication that she thinks Chevron deference should be curtailed as a majority of the current Supreme Court justices appear inclined to do,” emailed Free State Foundation President Randolph May. Her first published opinion on the D.C. Circuit, American Federal of Government Employees v. Federal Labor Relations Authority (AFGE), “may give administrative lawyers and FCC watchers some pause,” he said.

Jackson’s appellate decisions have started to be published only in the past month, noted Jeffrey Lubbers, American University Washington College of Law professor. He saw as the most noteworthy a labor case,AFL-CIO v. Federal Labor Relations Authority . Jackson “upholds a challenge to an FLRA change in guidance as to what triggers managers’ duty to bargain as arbitrary and capricious,” Lubbers said: “It is a well-reasoned opinion applying basic administrative law. And it supported the union.”

Jackson rejected a Trump administration ruling restricting the kinds of workplace changes requiring collective bargaining, May said. She “cited, and misstated the import of, the Supreme Court’s ... opinion in FCC v. Fox Television Stations,” he said. In the top court's majority opinion, Justice Antonin Scalia said “when an agency changes a policy, as long as its action is permissible under its enabling statute, it need not show that the reasons for the new policy are better than the reasons for the old one,” May said: “Jackson misquoted Fox, declaring the agency must show it believes the new policy is better than the old one. The difference between not having to demonstrate that the changed policy is ‘better’ and having to demonstrate it is ‘better’ may not have mattered in the AFGE case in light of other errors. But any retreat from the Fox Television Stations standard articulated by Justice Scalia could matter in other administrative law cases, including … FCC cases.”

Jackson as a judge for the U.S. District Court in Washington, D.C., denied attempts during the Donald Trump administration “to expedite immigration hearings on procedural grounds, saying that the administration needed to seek public comment before executing its strategy,” Thayer said. Jackson sided with the Trump administration in another case, saying the Department of Homeland Security could waive more than two dozen environmental laws to build part of the border wall with Mexico, Thayer said: “My guess is that, so long as the agency follows the procedure, Judge Jackson would probably not challenge the agency's action provided that statute gave the agency the authority to do so, nor would she find ways to weaken Chevron.”

“Jackson is coming from the D.C. Circuit, which plays an outsized role in shaping administrative law,” said Daniel Lyons, American Enterprise Institute nonresident senior fellow. “But she was only elevated to that court last year, so she does not have a body of appellate case law that would indicate which way she would lean on these issues.” Jackson “obviously has significant experience at the district court level, but district court judges are not in the same position to shape law, so I would not read those decisions as indicative of where she would take the law,” Thayer said.

Tech Matters

Jackson sided with Chrysler, Ford and General Motors in a lawsuit music royalty nonprofit group Alliance of Artists and Recording Companies brought against the automakers in 2014 over claims they violated the Audio Home Recording Act (see 1602220055 and 1408010063). AARC filed a lawsuit in the D.C. district court alleging the automakers violated the act for three years by shipping vehicles with CD-copying hard drives without building the serial copy management system into the devices or paying the Copyright Office a required 2% hardware royalty on wholesale price of hardware. Jackson ruled the hard drives didn’t fit AHRA definitions of digital audio recording devices.

Jackson later sided again with the automakers in March 2018, finding the devices didn’t violate the AHRA in docket 1:14-cv-01271. Because the devices had “data and information not incidental to the music recorded on them,” the hard drives weren’t digital audio copied recordings, she wrote. The U.S. Appeals Court for the D.C. Circuit upheld Jackson's decision in January 2020.

Jackson backed DOJ in a lawsuit the Electronic Privacy Information Center brought in 2013 seeking records about a U.S. government national security program that involved the “surreptitious use of pen register and trap-and-trace devices to collect communications information.” EPIC contended the department improperly withheld documents based on Freedom of Information Act exemptions. EPIC sought documents about the Foreign Intelligence Surveillance Court (FISC) and portions of reports DOJ submitted to Congress, consisting of FISC legal opinions and other materials. The court agreed with DOJ’s FOIA justifications for the FISC-related printouts and redacted portions of congressional reports, saying documents were properly classified and withheld. Jackson’s opinion referenced DOJ’s justification through authority under an executive order used to maintain secrecy in the interest of national defense. However, she ordered DOJ to further justify questionable redactions in the congressional reports.

Jackson sided with Sony and Warner Music in a lawsuit brought by Moreh Buchanan, who claimed the record companies stole his music and lyrics to four original songs between 1993 and 2018. Buchanan alleged Universal Pictures derived plot and story lines to the Fast and the Furious film franchise from one of his copyrighted songs. Jackson ruled in favor of the companies in 2020, saying Buchanan hadn’t registered all the songs with the Copyright Office. He also didn’t prove the companies had access to the works or that there were “substantial similarities between protectable aspects of his registered works and most of infringing songs in the complaint,” she wrote.