Opinions vary on whether a new Supreme Court ruling will affect the net neutrality case and the deference courts show regulatory agencies. Justices vacated and remanded Monday a decision of the 9th U.S. Circuit Court of Appeals that had deferred to the Department of Labor on regulation under the Fair Labor Standards Act dealing with overtime pay, which was challenged by an automotive dealership (Encino Motorcars, LLC v. Navarro et al., No. 15-415). The high court found the 9th Circuit hadn't adequately required the department to justify a change in policy, particularly in light of the dealership's "significant reliance interests" on the previous policy. Telcos and cable providers also argued FCC didn't adequately justify its policy change and account for their reliance interests in reclassifying broadband from Title I to a Title II telecom service under the Communications Act.
Opponents of the FCC net neutrality order face an uphill appellate battle, commission supporters told us Wednesday. A day earlier, a panel of the U.S. Court of Appeals for the D.C. Circuit upheld the order that reclassified broadband as a Title II telecom service under the Communications Act (see 1606140023). The stakeholders doubted a potential appeal to the Supreme Court would be successful and were even more dubious about the prospects of an en banc appeal to the D.C. Circuit, adding to appellate skepticism expressed by others on both sides of the battle Tuesday (see 1606140040).
Opponents of the FCC net neutrality order face an uphill appellate battle, commission supporters told us Wednesday. A day earlier, a panel of the U.S. Court of Appeals for the D.C. Circuit upheld the order that reclassified broadband as a Title II telecom service under the Communications Act (see 1606140023). The stakeholders doubted a potential appeal to the Supreme Court would be successful and were even more dubious about the prospects of an en banc appeal to the D.C. Circuit, adding to appellate skepticism expressed by others on both sides of the battle Tuesday (see 1606140040).
The FCC upcoming draft broadcast ownership quadrennial review order is expected to resurrect the commission’s vacated joint sales agreement rules and stick close to a 2014 Further NPRM on media ownership, said attorneys on both the broadcaster and public interest sides of the issues. They said in interviews this and last week that there may be some fluidity on the newspaper/broadcast cross-ownership rule that was specifically targeted in the 3rd U.S. Circuit Court of Appeals majority opinion that spurred the FCC to action. The item, planned to go on circulation by June 30 (see 1605250073), is expected to contain few surprises, several attorneys told us. The FCC declined to comment Tuesday.
A court's delay in issuing a net neutrality ruling provides few hints about the outcome, those on both sides told us Friday. (The court generally issues rulings on Tuesdays and Fridays.) Several said a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit is probably struggling to reconcile the complexities and some said it's likely split. But most didn't read much, if anything, about the court's leanings into the six-plus months that have passed since Dec. 4 oral argument on the various challenges to the FCC's 2015 order that reclassified broadband under Title II of the Communications Act and created net neutrality rules (see 1512040058). Lawmakers aren't too concerned, either (see 1606090064).
A court's delay in issuing a net neutrality ruling provides few hints about the outcome, those on both sides told us Friday. (The court generally issues rulings on Tuesdays and Fridays.) Several said a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit is probably struggling to reconcile the complexities and some said it's likely split. But most didn't read much, if anything, about the court's leanings into the six-plus months that have passed since Dec. 4 oral argument on the various challenges to the FCC's 2015 order that reclassified broadband under Title II of the Communications Act and created net neutrality rules (see 1512040058). Lawmakers aren't too concerned, either (see 1606090064).
A federal court set Sept. 13 oral argument on Neustar's challenge to an FCC order that gave Telcordia the inside track to be the next local number portability administrator. The composition of the three-judge panel to hear the case will be revealed 30 days before oral argument, said a short order Wednesday of the U.S. Court of Appeals for the D.C. Circuit (Neustar v. FCC, No. 15-1080). A Neustar spokesperson said, "We are pleased to see that oral argument has been scheduled for early fall." The FCC had no comment. Neustar and the FCC made their arguments last fall (see 1509210040, 1510290029 and 1511270033) and briefing closed in December. Asked about the D.C. Circuit's delay in setting oral argument, Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who is not involved in the case but is a longtime court watcher, told us “it does seem to be a little slow, but I’m not sure this is unusual.” The D.C. Circuit “stops hearing cases in late May. Unless there is some need for expedition, cases that don't make that schedule are heard in the fall, and the court doesn't start scheduling the new term until about now," he emailed. "This case is one of the very first cases being heard in the fall, so without knowing more, it could well be that it just missed the cut for the current term." But he also said two cases heard in May had briefing that wasn't completed until February or March, "so something might have held" up the Neustar case.
Broadcaster joint sales agreements may come up in an appropriations rider this year despite Wednesday's court ruling remanding to the FCC JSA TV limits. House Communications Subcommittee Chairman Greg Walden, R-Ore., sees the 3rd U.S. Circuit Court of Appeals media ownership ruling, which vacated limitations on JSAs due to process concerns over the agency's delaying its quadrennial reviews (see 1605250073) as a bigger impetus for telecom oversight and overhaul, particularly in the form of FCC reauthorization legislation. Attorneys and analysts are divided over how the FCC will respond to the ruling, with some seeing a retooled JSA attribution rule in the offing and others expecting some deregulation.
The FCC lost a media ownership court case in which broadcasters appealed an order limiting TV joint sales agreements in some circumstances and public interest groups appealed on a lack of further regulation and on concerns the commission didn't fully address diversity issues. The 3rd Circuit Court of Appeals also ordered mediation. It vacated and remanded to the commission the TV JSA agreement rule, in a brief order Wednesday.
Three former federal employees who support stronger data and device encryption said Tuesday the debate over the issue is changing as several former intelligence and homeland security officials have come out in favor of end-to-end encryption. At a panel co-sponsored by the Center for Democracy and Technology (CDT) and New America's Open Technology Institute, Venable attorney Ari Schwartz said former CIA Director Michael Hayden and former Homeland Security Secretary Michael Chertoff are on the side of stronger encryption, and the intelligence community is no longer "as adamant" about having back or front doors to encrypted information. "They don't see it as essential" in doing their work, he said.