FCC supporters, critics and others continue to offer different takes on Friday’s net neutrality oral argument heard by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit (see 1512040058). The supporters believe Judge David Tatel’s focus on the Supreme Court’s 2005 Brand X ruling and the discretion it gave the FCC bodes well for the agency’s broadband reclassification under Title II of the Communications Act and its net neutrality rules. Even one critic of the order suspects Title II reclassification of wireline ISPs could be upheld. But some on all sides said the agency’s reclassification of mobile broadband was at risk, with FCC critics saying other aspects were also vulnerable. A two-part audio recording of the argument is available here (USTelecom vs. FCC, No. 15-1063).
FCC Chairman Tom Wheeler took several shots at ISPs Thursday during the FCBA annual dinner speech at the Washington Hilton, speaking hours before Friday’s net neutrality challenge oral argument (see 1512040058) before the U.S. Court of Appeals for the D.C. Circuit. He joked that the “light of my life” and the “person who inspires me every day to get up” is Judge David Tatel, seen as a key judge in that case (see 1510280052). Wheeler called the dinner the “pre-argument tailgate” for the telecom lawyers in the room. He referred to Uber surge pricing likely that evening, and said NCTA Chairman Michael Powell “blames it on Title II,” the part of the Communications Act that Wheeler reclassified broadband under in the net neutrality order, which is under legal challenge. Title II was a running joke of Wheeler’s through the night. He singled out Comcast attendees within the first five minutes of a 38-minute speech. “If they want more wine, it’s $35 a bottle,” Wheeler declared. “And don’t consider it a wine cap. Just think of it as a wine usage plan.” He mocked ISPs again on the FCC’s order to pre-empt state laws limiting municipal broadband networks, saying ISPs opposed the order in the “hotly debated” issue. “And on the other side, you had elected officials, small business owners, innovators, entrepreneurs, policy experts, competition advocates, teachers, doctors, parents, social workers, nuns, puppies, kittens and the original Broadway cast of Hamilton.” He tallied off different industry consolidation proposals under consideration, rejected and approved from the past year. “I just worry that if Time Warner gets hurt again, they could just lock themselves in their room, listen to Adele, eat ice cream straight out of the carton and read John Malone’s old love letters,” Wheeler said of Charter Communications’ proposed buy of TWC after a failed bid by Comcast. Malone is Charter’s largest shareholder. Wheeler joked that Dish Network Board Chairman Charlie Ergen was a victim of the extramarital dating website Ashley Madison hack: “Poor Charlie Ergen … no one responded.” Wheeler judged “hilarious” Verizon suing to overturn the FCC’s old net neutrality order only to return and advocate for the very proposal when confronted later with the Title II possibility. He also alluded to the FCC’s forthcoming website electronic comment filing system: “It’s the finest ECFS in the world,” he said, assuming the bombastic rhetoric of GOP presidential contender Donald Trump. “It’s huge! We’re going to make ECFS great again.” He ribbed FanDuel and DraftKings, saying they sponsored the evening, and showed a video of “a new business venture” called “Fanta-CBA,” an imagined fantasy league showing telecom lawyers. The video featured cameos from NTIA Administrator Larry Strickling, Wheeler Chief of Staff Ruth Milkman, CTIA President Meredith Baker, Powell and Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation. “No more guard bands to cut down interference,” Wheeler said of Trump’s imagined spectrum plan. “Instead he’s gonna build a wall. Mexico will pay for it.” He said Trump was “a very big proponent of white spaces.” Other Wheeler bits included playing Drake’s “Hotline Bling” alongside a video clip of Wheeler’s hand gestures on repeat from a congressional hearing -- he accused Drake of picking up the gestures as dance moves. He donned a smoking jacket in front of an imaginary fire at one point to tell a bedtime story: “'Twas the night before argument, and back at his home, my poor general counsel sits fretting, alone … .”
FCC Chairman Tom Wheeler took several shots at ISPs Thursday during the FCBA annual dinner speech at the Washington Hilton, speaking hours before Friday’s net neutrality challenge oral argument (see 1512040058) before the U.S. Court of Appeals for the D.C. Circuit. He joked that the “light of my life” and the “person who inspires me every day to get up” is Judge David Tatel, seen as a key judge in that case (see 1510280052). Wheeler called the dinner the “pre-argument tailgate” for the telecom lawyers in the room. He referred to Uber surge pricing likely that evening, and said NCTA Chairman Michael Powell “blames it on Title II,” the part of the Communications Act that Wheeler reclassified broadband under in the net neutrality order, which is under legal challenge. Title II was a running joke of Wheeler’s through the night. He singled out Comcast attendees within the first five minutes of a 38-minute speech. “If they want more wine, it’s $35 a bottle,” Wheeler declared. “And don’t consider it a wine cap. Just think of it as a wine usage plan.” He mocked ISPs again on the FCC’s order to pre-empt state laws limiting municipal broadband networks, saying ISPs opposed the order in the “hotly debated” issue. “And on the other side, you had elected officials, small business owners, innovators, entrepreneurs, policy experts, competition advocates, teachers, doctors, parents, social workers, nuns, puppies, kittens and the original Broadway cast of Hamilton.” He tallied off different industry consolidation proposals under consideration, rejected and approved from the past year. “I just worry that if Time Warner gets hurt again, they could just lock themselves in their room, listen to Adele, eat ice cream straight out of the carton and read John Malone’s old love letters,” Wheeler said of Charter Communications’ proposed buy of TWC after a failed bid by Comcast. Malone is Charter’s largest shareholder. Wheeler joked that Dish Network Board Chairman Charlie Ergen was a victim of the extramarital dating website Ashley Madison hack: “Poor Charlie Ergen … no one responded.” Wheeler judged “hilarious” Verizon suing to overturn the FCC’s old net neutrality order only to return and advocate for the very proposal when confronted later with the Title II possibility. He also alluded to the FCC’s forthcoming website electronic comment filing system: “It’s the finest ECFS in the world,” he said, assuming the bombastic rhetoric of GOP presidential contender Donald Trump. “It’s huge! We’re going to make ECFS great again.” He ribbed FanDuel and DraftKings, saying they sponsored the evening, and showed a video of “a new business venture” called “Fanta-CBA,” an imagined fantasy league showing telecom lawyers. The video featured cameos from NTIA Administrator Larry Strickling, Wheeler Chief of Staff Ruth Milkman, CTIA President Meredith Baker, Powell and Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation. “No more guard bands to cut down interference,” Wheeler said of Trump’s imagined spectrum plan. “Instead he’s gonna build a wall. Mexico will pay for it.” He said Trump was “a very big proponent of white spaces.” Other Wheeler bits included playing Drake’s “Hotline Bling” alongside a video clip of Wheeler’s hand gestures on repeat from a congressional hearing -- he accused Drake of picking up the gestures as dance moves. He donned a smoking jacket in front of an imaginary fire at one point to tell a bedtime story: “'Twas the night before argument, and back at his home, my poor general counsel sits fretting, alone … .”
A three-judge panel pressed attorneys from all sides at oral argument Friday on petitioner challenges to the FCC’s net neutrality order in the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063). Judges heavily questioned USTelecom arguments that the FCC’s broadband reclassification under Title II of the Communications Act violated the law, with Judge David Tatel suggesting the 2005 Supreme Court Brand X ruling gave the agency broadband classification much deference. But the judges also pushed FCC attorneys hard to defend the commission’s reasons for reclassifying, extending Title II to mobile broadband and IP Interconnection but not edge traffic, and banning paid prioritization. The complicated oral argument was scheduled for two hours but ran three hours. A two-part audio recording is available here.
A three-judge panel pressed attorneys from all sides at oral argument Friday on petitioner challenges to the FCC’s net neutrality order in the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063). Judges heavily questioned USTelecom arguments that the FCC’s broadband reclassification under Title II of the Communications Act violated the law, with Judge David Tatel suggesting the 2005 Supreme Court Brand X ruling gave the agency broadband classification much deference. But the judges also pushed FCC attorneys hard to defend the commission’s reasons for reclassifying, extending Title II to mobile broadband and IP Interconnection but not edge traffic, and banning paid prioritization. The complicated oral argument was scheduled for two hours but ran three hours. A two-part audio recording is available here.
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.