SCOTUS May Not Have Appetite for Title II, Digital Discrimination: Benton's Schwartzman

How did you become one of the FCC's most prominent gadflies?

This group of lawyers left big firms and set up the Center for Law and Social Policy [in 1968]. As a public interest law firm, it was brand new, the whole concept was brand new. And one of the people there, right out of law school, was Geoff Cowan, who later became head of Voice of America and dean of [the University of Southern California] Communication School. He was interested in FCC stuff, didn't know a whole lot. He had started a couple of fairness doctrine cases. And I came for a six-month internship. I was always a journalism junkie from the time I was the tiniest little kid. I mean First Grade, when I was first learning to read, I would pour over the sports section of the New York Times and read the articles and ask for help from my parents reading the words. And as soon as we [the center] started doing that [FCC] stuff, yeah, it just felt right. And I loved it. [The United Church of Christ] was one of their clients at the time ... so I reached out to [media activist and UCC Office of Communications Director] Everett Parker to see if there was a job at the United Church of Christ. And as it happens, he was a family acquaintance. So, I actually was able to get through. And I talked him into hiring me in-house because he was using an outside law firm. So he hired me and I worked there for three and a half years doing FCC stuff. He was an incredibly important mentor.

I had friends here [in D.C.], and I didn't have friends in New York [where the UCC previously was headquartered before moving to Cleveland in 1990], so it took me a year or two to figure out I should be in Washington. So, that was '74, right at the height of the Arab oil embargo. And I knew somebody who knew somebody who knew somebody and I wound up at [what was then] the Federal Energy Office in the White House, and then became the Federal Energy Administration, and then was wrapped into the newly created Department of Energy. And we did oil price controls. And I did that for about three or four years. But during that time, I ... stayed in touch with all the FCC decisions and stuff and just kind of figured that I would be back in communications. And then Media Access Project [MAP], which at that time was about 4 or 5 years old ... recruited me to take over in 1978.

MAP functioned as the substitute for a Washington, D.C., communications firm for these organizations, none of whom at the time had any in-house capacity. Media and communications for all these groups was their second issue. If you were the National Organization for Women or the Environmental Defense Fund -- they were clients we had at the time -- and then we had these local groups that wanted to do Petitions to Deny, because that's the area where there were all these hearings to deny petitions all the time, we functioned as communications counsel. Communications was everybody's second issue. It was a means to an end for their environmental mission, or their feminist mission or civil rights mission. It is now central. So, you have organizations that are devoted to the centrality of how media or communications affect society and the democratic process.

The problem, which is not unique to the public interest community, is that technology is moving at this point so fast, and at such sophisticated levels, that there are just too many things to manage. Everybody's talking about doing AI, AI, AI, AI. But to develop mastery of that and to deal with it is really, really hard. [The Center for Democracy and Technology] has got some great people on board and doing great stuff, but here's billions of dollars going into it and all these people doing these things. It's very hard to stay on top of these things. And they are FCC regulatory or Washington regulatory adjacent in many cases, right. So. we're talking about, do we regulate AI, do we regulate social media? There are just so many distractions.

Over time, we helped create an infrastructure, including groups that are principally dedicated to these issues and who grew big enough to develop capacity. That's why by 2012, Media Access Project became less important for that purpose. That's why we decided, let's shut it down while we're on top ... and we kind of worked ourselves out of a job by helping develop this infrastructure.

The Public Interest

Was that the right move?

Oh, yeah, absolutely. I got an alumni award at Penn ... and they asked me to reflect on my accomplishments. What I said was, I'm not the best lawyer in Washington, best lawyer in the communications bar, by far, but what I'm most proud of is my teaching and my mentoring. And creating a cadre of alumni who are distributed throughout the government, public service, in the states, in D.C., and in all the public interest groups. So, you know, Cheryl [Leanza, a United Church of Christ adviser], [American Association for Public Broadband Executive Director] Gigi [Sohn], [Public Knowledge Senior Vice President] Harold [Feld] -- I rest my case right here. And all of them are better lawyers than me. Better lawyers than anyone. [FCC Wireline Bureau Competition Policy Division Deputy Chief] Chris Laughlin was a fellow of mine at Georgetown. [FCC digital equity and inclusion special adviser] Lisa Wilson Edwards, who was kind of the main person writing the digital discrimination item that they put out, was an intern of mine 35 years ago. So, I've got all these people around the commission. And then people who didn't directly work for me but who I kind of mentored, like Carmen Scurato, who is in the chairwoman's office, and her husband, Michael, was a fellow at Georgetown. So, I've got these people all over the place that I helped train and that's the real accomplishment.

Is it better having all of these groups?

Oh yeah, it's much more effective. We used to joke that the entire public interest communications bar could and did meet in one room around a conference table, the six or eight of us. Can't do it [now].

What do you think has been the impact of having this more robust public interest-oriented cadre? What if this had not existed?

Counterfactuals are always difficult. But regulatory capture was and will always be a problem. Even in a nominally progressive, Democratic-run FCC. It's still a problem. But now the public interest community are considered stakeholders. And our views are solicited, and they realize that they have to take those views into account. Otherwise, there will be problems. We improve the outcome, and I think people at the commission and many of the people in the private sector will agree. So, we are institutionalized, the public interest communities, and it's now in a way that just was not the case when I started in 1970. And then it's all for the better.

Is there a hole not filled in the public interest sector? A constituency that's not well represented that still needs to be addressed?

There is a resource limitation. That's just never going to change. We always have to pick our spots very carefully. The public interest cannot cover everything. At the moment, because [FCC Commissioner] Anna [Gomez] arrived and they're taking all these things off the shelf that they couldn't do with a two-to-two commission, we're looking at a couple of months of just comments, one right after another, and then litigation coming out on digital discrimination. So, we're just kind of stretched out, beyond belief. That's part of it -- the voice isn't as loud as it needs to be on some of these things and the expertise is not as deep as it needs to be. We just don't have the engineering, the expertise. It's very hard. And these days ... the tech companies throw money at these engineers coming out of school and stuff. So to get somebody to commit to public service and go to work in the government...

[Also] I'm sure there are underserved voices, broadly speaking, although there's a lot of groups and a lot of work being done. Native Americans and people on tribal lands had massive problems and very limited resources. The disabilities community also struggles very hard, though again, there's been some advances, and they have very good people doing some work, but they're greatly outgunned, and their voices [are] not as loud as they ought to be, for sure. I suspect there are others I just don't know about.

Net Neutrality

Is this time for net neutrality any different from all the other times?

A: Yeah, there's a pingpong on classifying and reclassifying. But the Communications Act hasn't changed, and we're talking about enforcing section[s] 201 and 202 and 207 of the Communications Act. And that, in turn, is really imported from the Interstate Commerce Act. So, the core legal questions -- and this will be very much part of the litigation -- is not something new. This is not a major question that Congress has never considered. Congress is considering this longer than almost any other question. So, in that sense, this is just a more important, more sophisticated variation on questions that have come up time and time again. But in the context of established laws, we would view it as established law. I kind of bristle at the kind of simple label that this is kind of Groundhog Day.

You sound bullish about how this will fare in court.

On the merits, I think that, as objective as I can be about it, the FCC should be affirmed. Because the simple version of it is, the Brand X case held that the statute was ambiguous, that it could be either Title I or Title II, and the agency had discretion to decide which hole to put it in. And either one is permissible.

The difference is, and the area of doubt arises, because the judiciary has changed dramatically. So the law hasn't changed -- interpretation of the law is changing. And it is much harder to predict. Certainly, among the things we will be arguing as this thing proceeds is that, given this history, and given that the Supreme Court decided Brand X, and [Supreme Court] Justice [Antonin] Scalia, the textualist, said [in effect], "Well, I don't think Chevron really governs here. I don't think it's ambiguous when I, the great textualist, read the Communications Act. I think it's clear that this is Title II." And Congress considered the shit out of these issues, as I said before, going back to 1984.

So, given that history, and given the fact that the Supreme Court has already ruled on this thing, there is what the Supreme Court advocates call a vehicle problem. Is this a good vehicle for the Supreme Court to make law, because they don't have to take every case? So. I would say that if we win in the Court of Appeals, it is less certain to me than it seems to be a lot of other people that the Supreme Court will want to take this case, as a way to play with/expand/change/whatever the major questions doctrine. This is a bad case for the major questions doctrine because Congress clearly considered these issues. And there's no shortage throughout the entire regulatory process of cases that are a lot easier to use to make law on major questions. If we win in the Court of Appeals, it's not clear that the Supreme Court will want to take this case, because they'll have to, at least in part, overrule Brand X. They don't like to overrule cases. There's a certain amount of capital that the Supreme Court has to expend in overruling cases. And I think [Chief Justice John] Roberts wants to reserve that for abortions, guns -- he's got things that they really care about.

On the other hand, if we lose in the Court of Appeals, I would imagine that for policy reasons, the solicitor general will want to take this case to the Supreme Court. Though they may shy away from it. That's not 100% clear, but I think it's more likely than that. So, I guess part of the answer is I'm not sure this case will go to the Supreme Court at all. And if it does, it is a much harder case for the Supreme Court to deal with under major questions than numerous other cases.

Can you handicap what you think the legal odds are for the inevitable digital discrimination challenge?

I'm pretty optimistic about that one as well. For all the fulminating you saw over this, it's pretty clear ... Congress was directing the FCC to do something and to consider and deal with it; that's major questions. This is, to me, a hard major questions case. And same comments apply to why courts or the Supreme Court is less interested in taking on a case like this, than it is with easier ones. The interesting difficult issue there is disparate impact. And the Supreme Court case law is very clear -- Duke vs. Griggs Power -- and that held discrimination is not just I intend to discriminate. Discrimination is if you have a height requirement that police have to be over 5 foot 6 inches tall, when in fact, people who are 5 foot 4 can be OK police officers, but it happens to make it very difficult for women and Hispanics disproportionately to become police officers. That's disparate impact. It's not intentional.

The FCC

Who is the best FCC commissioner ever?

That's a great question. I have to give you different categories. The most revolutionary commissioner, who kind of transformed how to view the commission, was Nick Johnson. He was 1970s. Broadcasting Magazine published a picture of him riding his bicycle to 20th and M Street [then Commission headquarters] because how could an FCC commissioner ride a bicycle? This was a different era, right? He wrote a book called How to Talk Back to Your Television Set. And he was an activist. The reason he got on the FCC was ... he was up at the Federal Maritime Commission, and he was so aggressive and so lefty, that the chairman [wanted to] get rid of him, so Lyndon Johnson put him on the FCC. He still teaches law and is the occasional gadfly. In some ways, the most significant commissioner during my period was [Reagan nominee] Mark Fowler because he really turned the ship around. He really created and led this massive [deregulation] change, and he was really, really, really good at it. He had a guiding philosophy and he executed.

So, in a way, he was your worst foe.

Yes. The best regulator ... was Dick Wiley. And the most effective in a dissenting role was Mike Copps. And I guess I would add, rookie of the year is Jessica [Rosenworcel], who is showing great promise early on.

What's a decision that you're particularly proud of? Is there a win or big issue that you were surprised that you pulled off?

I would say that the original Prometheus decision was the longest-lasting success. If the rules that [FCC Chairman] Michael Powell adopted had gone into effect, there would have been a massive [TV ownership] consolidation. There were contracts all lined up, hundreds of millions of dollars, transactions that had been, basically, almost negotiated. They're ready to pop and there will be this massive consolidation, and that was before radio consolidation, Clear Channel, all those things. So that might well have been a disaster, if all the TV ownership had similarly consolidated the same way. So that moves what would have been an immediate consolidation in the early 2000s over the course of a few years, that became this kind of slow, progressive consolidation that we've seen over time, limited by the continuation of these ownership rules and the national cap that has, I believe, helped maintain localism that would have been greatly diminished. You would have had more automated TV stations like Clear Channel and these other guys to deal with -- you know, these radio stations with one person at the board and everything comes in by satellite -- and I think we maintained localism in television especially. That would have gone away over that time. Even now, there is a core understanding that local television is where broadcasters are going to succeed by being solely tied to the community.

What is a time when you got your ass kicked?

Oh, God. Fin-syn [repeal]. The financial interest and syndication rules were unbelievably successful. Basically, the prime-time access rule said that the networks could not program more than four hours of prime time, so that basically returned the 7-8 o'clock hour to local stations where it has generally remained. And the other thing that they did was you could not maintain an interest in the syndication rights of programs that you aired -- it separated syndication from ownership. Fin-syn rules created Fox. It made it possible for a fourth network to develop in the '80s. That would not have been able to happen but for that. [Fox founder Rupert] Murdoch came along and absorbed what were these kind of more marginal independent stations, and they became the Fox affiliates. The second thing it did was create the golden era of the 1980s programming -- the Norman Lear stuff, Murphy Brown and All in the Family -- because they were produced by independent content producers who were not overly beholden to the network suits. The creative freedom that they had created all that kind of content.

So when the fin-syn rules got repealed [in 1993] ... all the movie studios and the television networks consolidated, which would not have been permitted, and they moved the production in-house. Most of them are owned by the networks or the networks have syndication rights. And it dumbed down the content. Considerably. The repeal of the fin-syn rules was an incredible disappointment. The other one that I could have answered with is much more complicated: the demise of the fairness doctrine, which was a bitter loss. And I think the fairness doctrine was a very important policy that would have been effective for another good ten, 15 years beyond its repeal in '87.

How long will you continue?

I'm 77 years old. [Former FCC General Counsel] Henry Geller was one my mentors. He remained active and in the game into his early 90s. His best friend from law school, [former FCC Chairman] Newt Minow, went to the office every day until COVID. When he died, he was 99. Everett Parker was 102 when he died, and he was still giving me orders, telling me what I should do when he was, like, 99. I have mentors who had long, active, productive careers. And the lesson is, if it's rewarding and fun, and you can keep doing it, you keep doing it. During COVID, I was working much too hard ... so I'm trying to trim down. For example, I'm not going to play aggressively on broadcast ownership. It's more than I want to do. And there's plenty of other people who can do it. So, I will keep doing it, as long as it's fun and I can keep going.