Type of Remand in Comcast v. FCC to Affect Agency Response
The FCC response to what’s considered an all-but-certain reversal or remand of its order against Comcast’s network management will largely be dictated by whether the appeals court rules on procedural or statutory grounds, government, industry and public interest lawyers said. A procedural ruling throwing out the 2008 order or sending it back for more work likely would have less impact on FCC authority over how all ISPs treat content, agreed eight lawyers, including some participants in the case, responding to our survey. A reversal by the U.S. Appeals Court for the District of Columbia Circuit of the order against the Comcast treatment of BitTorrent peer-to-peer files could have wider-reaching effects, they said.
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A narrow ruling in Comcast v. FCC has gotten less public attention amid talk by commission officials of potentially reclassifying broadband as a common carrier Title II service, from a Title 1 information service. Although oral argument (WID Jan 11 p1) mostly focused on what the jurists seemed to perceive as lack of authority to censure Comcast, the D.C. Circuit still may find against the FCC on procedural grounds, some said. Appeals courts generally try to rule as narrowly as possible, which may augur a reversal on grounds the commission violated the Administrative Procedure Act (APA) by enforcing 2005 net neutrality principles that aren’t rules, some respondents said.
A procedural reversal would mean the FCC likely would continue its net neutrality proceeding, with an eventual order codifying those four 2005 principles and perhaps others, said a commission official. The scenario of a procedural remand or reversal may be getting less attention because many take for granted that the APA wasn’t followed in the case of Comcast, the official said. Rejecting the order on statutory grounds could directly impact the net neutrality proceeding if it saps FCC authority over broadband service, the person said. A Media Bureau spokeswoman declined to comment, as did a spokeswoman for Comcast.
In the case of a procedural reversal, the commission would be unwise to try to redo the 2008 order against Comcast because the company has since ceased the conduct at issue, said industry and public interest lawyers. “I'm not sure that it would be a good idea for the FCC to issue a new enforcement order now on what would be currently unused management techniques by Comcast,” said cable and telco lawyer Paul Feldman of Fletcher Heald, who watched the Jan. 8 oral argument. “It doesn’t make sense anymore to revisit alleged techniques that Comcast was using three years ago, which they've publicly said that they no longer use -- even if the commission had jurisdiction, which I think is unlikely.”
It’s ‘unlikely the FCC would try to justify that order since Comcast has moved to a new practice,” said Free Press General Counsel Marvin Ammori, who spoke for groups siding with the agency in oral argument. “It’s unlikely the FCC would have to justify the procedure there because the FCC is moving to a rulemaking,” he said. President Andrew Schwartzman of the Media Access Project, representing other intervenors on the side of the regulator, views a narrow reversal as “a perfectly plausible scenario,” though it’s hard to predict what the FCC will do before the court rules, he said. “Given the passage of time and the limited effect that such a decision would have -- after all, Comcast has eliminated the procedure which gave rise to the complaint -- if the remand were simply on notice [grounds], events would have transcended such a decision and it may not be worthwhile for the FCC to expend much effort."
The commission under Chairman Julius Genachowski doesn’t seem inclined to reclassify broadband as a common carrier service if possible, said many of the lawyers we surveyed. “Even though I think it’s the most logical solution, to reclassify, that’s a thorny political question and political issues and the power of the industry might have more to say than logic,” Ammori said. “The FCC would have preferred the flexibility they had under Title I,” he added, saying he has no knowledge on commission deliberations.
The FCC could appeal any ruling against it on statutory grounds to the Supreme Court while reevaluating its authority under Title II, several survey respondents said. The regulator may continue the review of authority under that section of the Communications Act even if upheld on statutory grounds, said respondents including Legal Director Harold Feld of Public Knowledge. “I suspect the FCC will take the opportunity of the rulemaking to reevaluate the rationale for its authority under Title I,” he said of the net neutrality proceeding. “The commission has to be giving thought to its options right now because if they get a worst-case scenario, even if they decide to appeal … they would be operating in all areas with questions as to their authority."
That’s one reason the commission likely will wait on net neutrality rules until the D.C. Circuit rules, despite what some FCC officials have said, a cable industry lawyer predicted. He noted replies in the proceeding aren’t due until March 5 and the agency is busy working on the National Broadband Plan, due later that month. The commission could issue a further notice on whether it has ancillary authority over broadband, the lawyer said. A D.C. Circuit reversal on could mean the commission would combine the issues in the case with the net neutrality proceeding, another cable lawyer said: “Depending on how the rulemaking is written, they may not have to start from scratch.” A decision against the FCC on procedural grounds might be difficult for it to address quickly because there don’t appear to be other open rulemakings that could be used as a remedy, he said: “And the commission wants to be careful to not be burned twice.”