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.
Major Questions Doctrine
The main industry brief on the net neutrality order alleges the FCC majority, under Chairman Tom Wheeler, made a political decision in February when it opted to impose enhanced net neutrality rules on industry and reclassify broadband as a common carrier service. The brief was filed Thursday at the U.S. Court of Appeals for the D.C. Circuit by some of the top players in communications, including USTelecom, CTIA, NCTA, AT&T and CenturyLink, though CTIA and AT&T only join the section on wireless. The American Cable Association and the Wireless ISP Association also joined the brief.
The Supreme Court may be moving in a direction of giving less deference to the Chevron doctrine and that could be bad news for the FCC as an appeal of the February net neutrality order moves forward, Free State Foundation President Randolph May said Tuesday in The Hill. In recent decisions, King v. Burwell, an Affordable Care Act (ACA) case, and Michigan v. Environmental Protection Agency, the court raised new questions about Chevron deference, the doctrine that if a reviewing court deems a statutory provision “ambiguous” and the agency's interpretation “reasonable,” an agency's interpretation is to be given “controlling weight,” May said. In rejecting the latest challenge to the ACA, Chief Justice John Roberts “refrained, at least explicitly, from relying on Chevron deference, despite acknowledging the statute's ambiguity,” May wrote. “While observing that Chevron's approach ‘is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps,’ he nevertheless declared that this was one of the ‘extraordinary cases’ in which the Chevron doctrine doesn't apply. Why not? Because, according to Roberts, it involves a question of such deep 'economic and political significance' that ‘had Congress wished to assign that question to an agency, it surely would have done so expressly.’" In the Michigan case, writing for the majority, Justice Antonin Scalia said the EPA may regulate power plants only if it concludes "regulation is appropriate and necessary," May said. “Scalia, while not questioning Chevron's applicability, determined that, ‘even under this deferential standard,’ the EPA's interpretation of the statute was unreasonable. Thus, Chevron did not carry the day.”
The Supreme Court decided not to grant certiorari for Google’s appeal of Oracle’s lawsuit against the company over claims that Google copied Oracle’s Java application programming interface (API) technology in its Android mobile operating system. The court didn’t comment on its reasoning for refusing to hear arguments on the case. It said Justice Samuel Alito “took no part in the consideration or decision of this petition.”
The Supreme Court said it won't hear appeals of the 10th U.S. Circuit Court of Appeals’ decision a year ago upholding the FCC’s requirement that USF recipients provide broadband. Industry officials said the decision was a big positive for the FCC because if the court agreed to hear the case it would have meant many months of uncertainty for the FCC’s landmark November 2011 order “modernizing” USF and the intercarrier compensation regime. The Monday court order also shifted the fund to support broadband as well as traditional voice service.
The FCC scored a court victory Friday as a three-judge panel held unanimously that petitioners were “unpersuasive” in their “host of challenges” to the 2011 USF/intercarrier compensation order (http://1.usa.gov/1r18uaa). The 31 consolidated petitions for review were denied by the 10th U.S. Circuit Court of Appeals. It’s a validation of the agency’s power to condition the receipt of USF money on the promise of broadband buildout. The decision also affirms the agency’s authority over access charges on all telecom traffic. NARUC General Counsel Brad Ramsay told us he'd be “stunned” if no one appealed this to the Supreme Court, something others predicted (CD Nov 21 p6) after almost five hours of USF oral argument in November.
Federal law claims can be adjudicated in federal court even when there’s an ongoing state proceeding on the issue, the Supreme Court ruled unanimously (http://1.usa.gov/IO5ZD5) Tuesday. “Federal courts are obliged to decide cases within the scope of federal jurisdiction,” wrote Justice Ruth Bader Ginsburg for the entire high court. “Abstention is not in order simply because a pending state-court proceeding involves the same subject matter.”
A warrantless cellphone tracking case heard by the Massachusetts Supreme Judicial Court (SJC) last week could have repercussions for future legislation on privacy in the state, said privacy lawyers and stakeholders in interviews. The amicus briefs and oral argument raised questions on how the third-party doctrine has allowed government entities to get access to more personal information and how technologies have changed over the years. If the SJC ruled to restrict warrantless cellphone tracking, it would be the second state to interpret the Fourth Amendment to enhance privacy protections, said Jessie Rossman, ACLU Massachusetts staff attorney.
The U.S. Supreme Court upheld FCC authority to impose in 2009 a shot clock on cell tower zoning decisions, rejecting the arguments of cities, led by Arlington, Texas. When the case was argued in January (CD Jan 17 p1), the main question was whether the high court would add to already complicated case law on the Chevron doctrine, in a case examining whether federal agencies should receive deference in interpreting their own jurisdiction. In January 2012, the 5th U.S. Circuit Court of Appeals upheld the order, which set up a showdown before the Supreme Court. The court’s conservatives split on the decision Monday. Justice Antonin Scalia wrote the majority opinion, while Chief Justice John Roberts dissented, joined by justices Clarence Thomas and Samuel Alito.
Cities got their day in court Wednesday in their challenge to a 2009 FCC wireless zoning shot clock order previously upheld by the 5th U.S. Circuit Court of Appeals, which was heard by the U.S. Supreme Court. The major question that came up repeatedly as justices took up Arlington, Texas v. FCC was whether the high court should further add to already complicated case law on when an agency has jurisdiction to issue rules and whether agencies should receive deference when interpreting the scope of their own regulatory authority.