A U.S. Court of Appeals for the D.C. Circuit case involving several challenges to the FCC's 2014 quadrennial review rulemaking and the rule increasing attribution of joint sales agreements (JSAs) was moved to the 3rd U.S. Circuit Court of Appeals, just a little over a week before oral argument in the case was to be heard in D.C. The venue change was requested months ago by Prometheus Radio Project and a coalition of public interest groups (see 1510140063), and is seen as being favorable to their case, several broadcast attorneys told us. The FCC, Prometheus' opponent in the case, also supported the move (see 1506190060), while NAB, which is challenging different aspects of the quadrennial review order, wanted the case to stay in D.C.

Neither the Liberty companies nor Chairman John Malone has “the incentive or ability” to use any New Charter leverage in any way that represents a conflict of interest, Liberty Broadband, Liberty Interactive and Liberty Media said in filings posted Tuesday in FCC docket 15-149. Numerous conditions have been proposed as the commission reviews Charter Communications' proposed buying of Bright House Networks and Time Warner Cable (see 1511130021). Regulators will likely impose some that attempt to put up a barrier to any Malone leverage, said Andrew Schwartzman, who represents Zoom Telephonics, which is among those suggesting conditions.

Neither the Liberty companies nor Chairman John Malone has “the incentive or ability” to use any New Charter leverage in any way that represents a conflict of interest, Liberty Broadband, Liberty Interactive and Liberty Media said in filings posted Tuesday in FCC docket 15-149. Numerous conditions have been proposed as the commission reviews Charter Communications' proposed buying of Bright House Networks and Time Warner Cable (see 1511130021). Regulators will likely impose some that attempt to put up a barrier to any Malone leverage, said Andrew Schwartzman, who represents Zoom Telephonics, which is among those suggesting conditions.

The Department of Justice decision not to join the FCC’s brief defending its pre-emption of state restrictions on municipal broadband efforts (see 1511060041) is likely problematic for the commission, said most attorneys we queried Monday and some others making public comments. “I can only speculate, but the lack of DOJ support is a setback for the FCC,” said Potomac Research Group Senior Analyst Paul Glenchur, a former commission staffer and former law clerk on the U.S. Court of Appeals for the 9th Circuit. “It certainly is not a good sign for the agency,” said Bradford Ramsay, general counsel of NARUC, which intervened on behalf of state petitioners challenging the FCC pre-emption order.

The Department of Justice decision not to join the FCC’s brief defending its pre-emption of state restrictions on municipal broadband efforts (see 1511060041) is likely problematic for the commission, said most attorneys we queried Monday and some others making public comments. “I can only speculate, but the lack of DOJ support is a setback for the FCC,” said Potomac Research Group Senior Analyst Paul Glenchur, a former commission staffer and former law clerk on the U.S. Court of Appeals for the 9th Circuit. “It certainly is not a good sign for the agency,” said Bradford Ramsay, general counsel of NARUC, which intervened on behalf of state petitioners challenging the FCC pre-emption order.

Many lawmakers dislike what the FCC did in its recent net neutrality order, and the U.S. Court of Appeals for the D.C. Circuit should be aware of that, several House Republicans told the court in an amicus brief filed this week in USTelecom v. FCC, No. 15-1063, backing industry challenges to the order. House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., was the lead signatory of the brief, backed by other House Republicans including Reps. Gus Bilirakis of Texas, Kevin Cramer of North Dakota and Mike Pompeo of Kansas. “Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC,” they told the court of FCC reclassification of broadband as a Communications Act Title II telecom service. “The legislative activity undertaken by Congress since the 1996 Act demonstrates that Congress never intended the Title II-type 'net neutrality' obligations the FCC imposes on broadband providers in the Order and certainly never imagined the radical step of reclassification, which goes far beyond even the legislative proposals for rules that were repeatedly rejected by Congress.” They refer several times to an earlier amicus brief led by Sens. Ed Markey, D-Mass., and House Communications Subcommittee ranking member Anna Eshoo, D-Calif., who were involved in the 1996 Telecom Act’s writing and supportive of the current order (see 1509210058). The Republicans “have a strong interest in making clear that the Markey-Eshoo Amicus Brief does not represent the views of Congress and in fact is opposed by Members of the majority party in the House,” they said. Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, told us it’s unusual for such briefs to be filed late -- the deadline was Aug. 6 -- but the court is likely receptive due to the consent of most parties involved and the filers’ status as members of Congress. “It is especially unusual for a brief to be filed in DC once the panel is known; this allows the parties to tailor their arguments to the particular judges,” emailed Schwartzman, a net neutrality advocate. He criticized the Republicans’ argument, which involved tallying the many pieces of net neutrality legislation introduced over the years. “Most importantly, the issue in the case is what Congress did and thought in 1996 when it defined the term ‘telecommunications service,’” he said. “Anything that happened after that is of minimal relevance. … Leaving aside the fact that DSL was regulated under Title II from 1996 through 2004, there are many reasons why people introduce legislation even when an agency could use existing power to accomplish a particular goal. Legislation is faster. Also, in this case, until 2009 the FCC wasn't interested in adopting rules.”

Many lawmakers dislike what the FCC did in its recent net neutrality order, and the U.S. Court of Appeals for the D.C. Circuit should be aware of that, several House Republicans told the court in an amicus brief filed this week in USTelecom v. FCC, No. 15-1063, backing industry challenges to the order. House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., was the lead signatory of the brief, backed by other House Republicans including Reps. Gus Bilirakis of Texas, Kevin Cramer of North Dakota and Mike Pompeo of Kansas. “Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC,” they told the court of FCC reclassification of broadband as a Communications Act Title II telecom service. “The legislative activity undertaken by Congress since the 1996 Act demonstrates that Congress never intended the Title II-type 'net neutrality' obligations the FCC imposes on broadband providers in the Order and certainly never imagined the radical step of reclassification, which goes far beyond even the legislative proposals for rules that were repeatedly rejected by Congress.” They refer several times to an earlier amicus brief led by Sens. Ed Markey, D-Mass., and House Communications Subcommittee ranking member Anna Eshoo, D-Calif., who were involved in the 1996 Telecom Act’s writing and supportive of the current order (see 1509210058). The Republicans “have a strong interest in making clear that the Markey-Eshoo Amicus Brief does not represent the views of Congress and in fact is opposed by Members of the majority party in the House,” they said. Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, told us it’s unusual for such briefs to be filed late -- the deadline was Aug. 6 -- but the court is likely receptive due to the consent of most parties involved and the filers’ status as members of Congress. “It is especially unusual for a brief to be filed in DC once the panel is known; this allows the parties to tailor their arguments to the particular judges,” emailed Schwartzman, a net neutrality advocate. He criticized the Republicans’ argument, which involved tallying the many pieces of net neutrality legislation introduced over the years. “Most importantly, the issue in the case is what Congress did and thought in 1996 when it defined the term ‘telecommunications service,’” he said. “Anything that happened after that is of minimal relevance. … Leaving aside the fact that DSL was regulated under Title II from 1996 through 2004, there are many reasons why people introduce legislation even when an agency could use existing power to accomplish a particular goal. Legislation is faster. Also, in this case, until 2009 the FCC wasn't interested in adopting rules.”

Requiring broadcasters to dig into the true sources of funding for political ads as is requested in a letter Thursday from several transparency groups would create a thorny situation for the FCC, several broadcast attorneys said. The letter to FCC Chairman Tom Wheeler from the Campaign Legal Center, Common Cause and the Sunlight Foundation said the agency should act on several complaints, applications for review on the matter that have been sitting since 2014 (see Ref:1411130068]), and a Media Access Project petition for rulemaking from 2011. The Communications Act requires broadcasters to “exercise reasonable diligence” to correctly identify sponsors of political ads, and the FCC should enforce the law, said Georgetown Law Institute for Legal Representation Senior Counselor Andrew Schwartzman, who represents the groups.

The back and forth between Chairman Tom Wheeler and Commissioner Ajit Pai over the AM revitalization order is the latest flare-up (see 1510260062) in what is seen by some as a more partisan and divided FCC than past administrations, communications attorneys and former agency officials said in interviews this week. Wheeler and Commissioners Mignon Clyburn and Mike O'Rielly referenced (here, here and here) the disagreements and very public battle over the order in statements released with it. Lawyers said an antagonistic atmosphere at the commission is being exacerbated by partisan fighting in Washington.

Judge David Tatel is expected to play a key role as the U.S. Court of Appeals for the D.C. Circuit hears the appeal of the FCC’s net neutrality order, experts said in interviews. How the court will rule and whether the case is ultimately headed to the Supreme Court is more difficult to predict, they said Wednesday.