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.
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.
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).
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 FCC is expected to move soon to create a broadcast incubator order, before a deadline, said broadcast and anti-media consolidation attorneys in interviews. The 3rd U.S. Circuit Court of Appeals told the agency to file a report on the status by Aug. 6 when denying an emergency stay of a media ownership reconsideration order (see 1802070053). Though the 3rd Circuit asked only for a report, it could hurt the agency’s case to show up without a voted-on incubator order or strong indications one is coming soon, said numerous attorneys on both sides. The agency is unlikely to show up to court empty-handed, said Georgetown Institute for Public Representation Director Angela Campbell.
Supreme Court Justice Anthony Kennedy's effective retirement could alter court leanings, given his frequent swing votes, but the impact on communications law is unclear, attorneys told us Wednesday. The court said Kennedy will shift from active to senior status July 31. "This is a momentous development for the nation, but I don't think this has significance for communications law in the near term," emailed Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. Others called Kennedy a strong defender of free speech rights and noted he authored indecency and other media rulings. Citing recent 5-4 decisions and new Justice Neil Gorsuch, National Religious Broadcasters CEO Jerry Johnson urged President Donald Trump to once again nominate "a Constitution-honoring individual in the mold of" late Justice Antonin Scalia. Sen. Shelley Moore Capito, R-W.Va., also sought a nominee similar to Gorsuch. But Dianne Feinstein, D-Calif., Senate Judiciary Committee ranking member, called Kennedy a "pivotal and important" justice, and said no consideration of a replacement should be considered until after the November election. Sen. Patrick Leahy, D-Vt., respected Kennedy's "independence," even when they disagreed, and urged Trump to "abandon his 'short-list' of far-right" nominees. Among those issuing statements commending Kennedy were Senate Judiciary Chairman Charles Grassley, R-Iowa (here); Sen. Orrin Hatch, R-Utah, a former Judiciary chairman (here); Sen. Rob Portman, R-Ohio (here); and House Judiciary Committee Chairman Bob Goodlatte, R-Va. (here).
Supreme Court Justice Anthony Kennedy's effective retirement could alter court leanings, given his frequent swing votes, but the impact on communications law is unclear, attorneys told us Wednesday. The court said Kennedy will shift from active to senior status July 31. "This is a momentous development for the nation, but I don't think this has significance for communications law in the near term," emailed Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. Others called Kennedy a strong defender of free speech rights and noted he authored indecency and other media rulings. Citing recent 5-4 decisions and new Justice Neil Gorsuch, National Religious Broadcasters CEO Jerry Johnson urged President Donald Trump to once again nominate "a Constitution-honoring individual in the mold of" late Justice Antonin Scalia. Sen. Shelley Moore Capito, R-W.Va., also sought a nominee similar to Gorsuch. But Dianne Feinstein, D-Calif., Senate Judiciary Committee ranking member, called Kennedy a "pivotal and important" justice, and said no consideration of a replacement should be considered until after the November election. Sen. Patrick Leahy, D-Vt., respected Kennedy's "independence," even when they disagreed, and urged Trump to "abandon his 'short-list' of far-right" nominees. Among those issuing statements commending Kennedy were Senate Judiciary Chairman Charles Grassley, R-Iowa (here); Sen. Orrin Hatch, R-Utah, a former Judiciary chairman (here); Sen. Rob Portman, R-Ohio (here); and House Judiciary Committee Chairman Bob Goodlatte, R-Va. (here).
The FCC is seen as aiming to include an order on the national TV ownership cap on the July 12 commissioners’ meeting agenda, with the goal of getting ahead of an expected unfavorable court ruling on the UHF discount (see 1804200059), broadcasters, their lawyers and an official told us. All said it’s not clear what that order will do to the cap, and broadcasters are divided (see 1806050040). Broadcast groups such as Hearst and Gray filed a BIA Kelsey study posted Monday supporting their call for a 50 percent cap that would block Sinclair buying Tribune as currently constructed, while NAB recently met with aides to Chairman Ajit Pai on the association’s pitch to apply a rebranded UHF discount to all TV broadcasters.
Several net neutrality advocates don't plan to seek a stay of the FCC order undoing Communications Act Title II broadband service regulation. They told us Tuesday they aren't aware of any who will seek a stay, with the order to take effect Monday. Some have warned that Monday will mark the start of declines in internet freedom, which Republicans and other net neutrality deregulation backers say is overblown and untrue.
Several net neutrality advocates don't plan to seek a stay of the FCC order undoing Communications Act Title II broadband service regulation. They told us Tuesday they aren't aware of any who will seek a stay, with the order to take effect Monday. Some have warned that Monday will mark the start of declines in internet freedom, which Republicans and other net neutrality deregulation backers say is overblown and untrue.