Supreme Court Justice Ruth Bader Ginsburg's death could affect the outcome of the court's Oracle v. Google intellectual property case and be a turning point on some administrative law issues, experts told us. The federal judges most mentioned as President Donald Trump most likely choice to replace Ginsburg are considered somewhat unknown quantities on issues such as technology, media regulation and copyright.
Major Questions Doctrine
The FCC may wait a bit before taking up any NTIA petition for rulemaking to clarify the scope of the tech industry’s liability shield (see 2005290058), observers predicted in interviews this week. The Association of National Advertisers said it’s ready to defend marketers’ interests if threatened. A tech industry representative and academics told us President Donald Trump’s executive order last week sets a dangerous precedent and could compromise independent agencies.
Tech and business groups hailed President Donald Trump’s decision postponing the fourth installment of tariffs as his administration tries to negotiate a comprehensive trade deal with China, though three existing rounds of tariffs stay as is. Bipartisan condemnation greeted Trump’s surprise announcement he will let U.S. companies resume shipments to Huawei, though the tech-equipment giant remains subject to Commerce Department export administration regulations and entity list restrictions (see 1905160081).
The Supreme Court handed down what's essentially a middle of the road decision in a junk fax case, PDR Network v. Carlton & Harris Chiropractic, but its decision has implications for the FCC and the communications bar, lawyers following the case said Thursday. The opinion was expected to answered the question of whether the FCC has the long-assumed power to exclusively implement the Telephone Consumer Protection Act (see 1904250006) but stopped well short of that. The issues raised appear far from settled for the FCC, since four of the justices would have gone further, lawyers said.
With the FCC ending part-time leased access rules earlier this month, considering them contrary to the First Amendment (see 1906060029), media law and Constitution experts see potentially thorny questions emerging as it also considers whether its full-time requirements have similar problems. The agency could find itself in a particularly sticky situation if it decides the statutory requirement underlying its leased access rules seems to have a constitutional problem, said former FCC Deputy General Counsel Peter Karanjia.
The Supreme Court's 5-4 decision on First Amendment responsibilities of private operators of public access cable channels Monday isn't expected to have broader effects on public access channel operations generally or on the question of how far the public fora doctrine extends into cyberspace. Alliance for Community Media President Mike Wassenaar told us it has been urging public access channel members to have clear editorial policies and to work closely with producers to avoid litigation.
The ways the FCC and antitrust agencies like DOJ evaluate deals can diverge widely, said experts Saturday at American University-hosted annual Research Conference on Communications, Information and Internet Policy. Steptoe & Johnson's Jon Sallet said the FCC's big question is often what range of policy options are "reasonable" under the Chevron doctrine of judicial deference to agencies, and what record would support a decision made within that range, while at DOJ the focus was on how does one convince a judge, with the burden of proof being on government to prove its case.
Determining the right balance between national security and privacy rights will remain “an enormous issue” that the Supreme Court and lower courts will need to continue to grapple with over the next 10-20 years, high court nominee Brett Kavanaugh said during the Senate Judiciary Committee's Thursday confirmation hearing. Kavanaugh continued to discuss Chevron deference by courts to agency expertise and said he would maintain an open mind on calls to open the Supreme Court to live media coverage. Kavanaugh faced questions Wednesday on Chevron and his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1705010038 and 1809050061).
Supreme Court nominee Brett Kavanaugh attempted to parse his views on deference by courts to agency expertise under the Chevron decision, saying he's not totally opposed to the precedent, during the Senate Judiciary Committee's Wednesday confirmation hearing session. Kavanaugh's views on Chevron as a judge on the U.S. Court of Appeals for the D.C. Circuit mean many in the communications sector believe he would raise the bar for FCC regulations (see 1807100020). Kavanaugh defended his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC, as expected (see 1705010038 and 1808310045). Questions continued into the evening.
Senate Judiciary Committee members are certain to bring up Supreme Court nominee Brett Kavanaugh's views on the Chevron doctrine and net neutrality during his confirmation hearing, lawmakers and lobbyists told us. They cautioned those issues will compete for attention with higher-profile ones like limits of executive power, abortion and same-sex marriage, as happened during 2017 confirmation hearings for now-Justice Neil Gorsuch (see 1703200051 and 1703210065). Kavanaugh's hearing begins at 9:30 a.m. Tuesday in 216 Hart and continues through Thursday or Friday.