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.
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.
An NAB petition to deny asking the FCC to freeze its review of Charter Communications' planned buys of Bright House Networks and Time Warner Cable until the agency completes the 2010 and 2014 quadrennial ownership reviews is intended to gain attention rather than a sincere attempt to block or slow the deals, industry critics said in interviews Tuesday. Approving huge pay-TV deals while not reviewing or eliminating the rules that prevent broadcasters from matching their scale is anticompetitive, NAB General Counsel Rick Kaplan said. NAB and others have challenged the FCC’s lack of action on the quadrennial review in an ongoing proceeding in the U.S. Court of Appeals for the D.C. Circuit. Though numerous industry officials agreed that the FCC has been ignoring the quadrennial review, NAB’s gambit is expected to get little to no notice from the agency, they said.
An NAB petition to deny asking the FCC to freeze its review of Charter Communications' planned buys of Bright House Networks and Time Warner Cable until the agency completes the 2010 and 2014 quadrennial ownership reviews is intended to gain attention rather than a sincere attempt to block or slow the deals, industry critics said in interviews Tuesday. Approving huge pay-TV deals while not reviewing or eliminating the rules that prevent broadcasters from matching their scale is anticompetitive, NAB General Counsel Rick Kaplan said. NAB and others have challenged the FCC’s lack of action on the quadrennial review in an ongoing proceeding in the U.S. Court of Appeals for the D.C. Circuit. Though numerous industry officials agreed that the FCC has been ignoring the quadrennial review, NAB’s gambit is expected to get little to no notice from the agency, they said.
Net neutrality sparked familiar divisions but also some projections and legal analysis from attorneys on a Digital Policy Institute webinar Wednesday. While the FCC’s order faces many court challenges, Andrew Schwartzman, Georgetown Institute for Public Representation senior counselor, said he believes judges will likely focus on the commission’s authority to reclassify broadband as a Title II telecom service under the Communications Act and accord the agency’s view deference. But Brent Skorup, a George Mason University telecom research fellow, and Stuart Brotman, a University of Tennessee electronic media professor, questioned FCC deference in this case. Skorup suggested the commission was vulnerable on First Amendment grounds, but Schwartzman was skeptical. The three speakers did agree Congress is unlikely to pass a legislative compromise for now.
Net neutrality sparked familiar divisions but also some projections and legal analysis from attorneys on a Digital Policy Institute webinar Wednesday. While the FCC’s order faces many court challenges, Andrew Schwartzman, Georgetown Institute for Public Representation senior counselor, said he believes judges will likely focus on the commission’s authority to reclassify broadband as a Title II telecom service under the Communications Act and accord the agency’s view deference. But Brent Skorup, a George Mason University telecom research fellow, and Stuart Brotman, a University of Tennessee electronic media professor, questioned FCC deference in this case. Skorup suggested the commission was vulnerable on First Amendment grounds, but Schwartzman was skeptical. The three speakers did agree Congress is unlikely to pass a legislative compromise for now.