Supreme Court Nominee Eyed for Effect on Telecom Policy
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Tuesday, July 10, 2018

Supreme Court Nominee Eyed for Effect on Telecom Policy

President Trump’s nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to success retiring Justice Anthony Kennedy on the Supreme Court, which the president forwarded to the Senate today, is being eyed in telecommunications policy circles for its effect on the high court’s consideration of net neutrality policy, if that occurs.

Judge Kavanaugh dissented from the D.C. Circuit’s decision in 2017 not to review en banc the 2016 decision of a three-judge panel that upheld the FCC’s 2015 open Internet order. In his dissent he said the order was "unlawful and must be vacated" for two alternative and independent reasons. First, Congress “did not clearly authorize the FCC to issue the net neutrality rule,” he wrote. “Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common carrier obligations on Internet service providers.”

Second, Judge Kavanaugh argued that the net neutrality rule violated the First Amendment to the Constitution, which he said “bars the government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” The FCC “has not even tried to make a market power showing,” Judge Kavanaugh said, and therefore the rule violates the First Amendment.

During his dozen years on the appellate bench at the court that hears the lion’s share of appeals from FCC orders, Judge Kavanaugh has participated in many cases stemming from FCC actions, including joining earlier this year in a decision to uphold a federal district court’s dismissal of a lawsuit against Google LLC for failing to remove a post on a third-party blog it hosted. The lower court had held that the Communications Decency Act’s safe harbor for Internet intermediaries that host or transmit third-party content immunized Google from liability (TR Daily, Feb. 23).

Last year he penned a decision affirming a 2016 FCC order that rejected a request by groups that petitioned the agency to mandate multilingual Emergency Alert System (EAS) messages (TR Daily, Oct 17, 2017). He wrote that the agency had not acted unreasonably in seeking “more information from relevant parties before deciding whether to compel broadcasters to translate emergency alerts and broadcast them in languages in addition to English.”

Judge Kavanaugh also wrote the majority opinion last year in a 2-1 decision overturning the FCC’s 2014 ruling that the opt-out notice requirement the agency adopted in 2006 for fax advertisements applies to solicited faxes, as well as those that the recipient has not authorized.

A former clerk for Justice Kennedy, Judge Kavanaugh also served in the White House in various capacities during the George W. Bush administration and was a counsel for the Office of Independent Counsel under Ken Starr.

Republicans today praised the nominee for his jurisprudence and Democrats raised concerns about the implications for reproductive rights, gun control, environmental and labor issues, the Affordable Care Act, and potential litigation related to Special Counsel Robert Mueller’s investigation into the Russian government’s efforts to influence the 2016 election.

Public Knowledge Senior Vice President Harold Feld said, “Since his appointment to the D.C. Circuit, Judge Kavanaugh has made it clear that his extreme views on corporate speech, combined with his clear disdain for economic regulation, threaten the diversity in the marketplace of ideas previously championed by Justice Kennedy.”

Mr. Feld added, “Judge Kavanaugh’s presence on the Supreme Court would make it extraordinarily difficult for Congress, federal agencies, or the states to protect consumer privacy, or to address increasing concerns such as the proliferation of fake news, or to prevent network operators or digital platforms from censoring speech. Similarly, Judge Kavanaugh has already demonstrated in his jurisprudence that he would regard efforts to prevent broadband networks, search engines, or social media platforms from using their networks to unfairly disadvantage competing services as violations of the free-speech rights of companies such as Comcast, Google, or Facebook.

“In short, Judge Kavanaugh has consistently found that the First Amendment exists not to preserve civil liberties, but to protect corporate power. Anyone concerned with the future of consumer protection or competition should find Judge Kavanaugh’s nomination extremely troubling,” Mr. Feld concluded.

However, TechFreedom President Berin Szóka said Judge Kavanaugh’s position as “the leading voice on appeals courts for limiting Chevron deference,” which, if that position were adopted by the Supreme Court could lead to closer scrutiny of administrative agencies’ interpretations of statutes. In his dissent from the D.C. Circuit’s decision upholding the FCC’s classification of broadband Internet access service as a Communications Act Title II service in its 2015 Open Internet Order, “[h]e decried blind deference to bureaucrats as an abdication of the judiciary’s responsibility to determine what statutes mean, ceding that legislative function to the Executive, and thus violating the Constitution’s separation of powers,” Mr. Szóka said.

“Judge Kavanaugh’s arguments in [the decision on the 2015 open Internet order] were based on arguments that TechFreedom alone raised throughout that litigation as intervenors,” Mr. Szóka said. “Namely, Chevron deference should not apply to such a ‘major question’ of ‘vast economic or political significance.’ The issue in that case wasn’t really about net neutrality, but rather the sweeping power to control the Internet claimed by the FCC in the name of net neutrality. The ‘major question’ doctrine originated with Justice Breyer but has been embraced by Justices across the ideological spectrum.”

“Limiting Chevron deference isn’t about advancing the interests of industry or party, but rather about protecting all Americans from bureaucracy run amuck,” Mr. Szóka added. “Sometimes, limiting Chevron might help a particular company, but it could also help plaintiffs in immigration, surveillance or civil liberties cases. It simply means that, when statutory language is ambiguous, judges will not simply give the government a blank check. That, in turn, will force Congress to start writing clearer laws.”

In a research note released Sunday and reaffirmed today with the assurance “we were not kidding,” New Street Research said that if adopted by the court, Judge Kavanaugh’s view that, “[a]bsent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers,” could have “significant implications for the sector. For one thing, the norms of no blocking and no throttling would not be enforceable, even if the FTC were to find that the actions were taken for an anticompetitive purpose. But that is far from all. Any regulation that compels one network to carry any kind of traffic could be seen as a violation of the First Amendment. So bye-bye must-carry, bye-bye public interest obligations, bye-bye pretty much any kind of regulation. After all, forcing carriers to do anything, from interconnecting to transmitting 911 calls may be in the public interest but, under the Kavanaugh framework, such requirements could be viewed as compelled speech and therefore unconstitutional. —Lynn Stanton, lynn.stanton@wolterskluwer.com

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