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.
Major Questions Doctrine
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).
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.