Net Neutrality: Tomorrow Is The Judgement Day (Well, Oral Argument).

So here we are. One day more until oral argument on the FCC’s February 2015 decision to reclassify broadband as a Title II telecom service and impose real net neutrality rules. We definitely heard the people sing — 4 million of them sang the songs of very angry broadband subscribers to get us where we are today. But will we see a new beginning? Or will it be every cable company that will be king? Will Judges Tatel and Srinivasen and Senior Judge Williams nip net neutrality in the bud? Or will we finally meet again in freedom in the valley of the Lord?

 

You can read my blog post on the Public Knowledge blog for a summary of the last 15 years of classification/declasification fights, rulemakings, and other high drama. You can read my colleague Kate Forscey’s excellent discussion of the legal issues in this blog post here. This blog post is for all the geeky Tales of the Sausage Factory type factoids you need to know to really enjoy this upcoming round of legal fun and games and impress your friends with your mastery of such details. Thing like, so how do you get in to the court to watch? What opinions have the judges on the panel written that give us a clue? What fun little things to watch for during argument to try to read the tea leaves? I answer these and other fun questions below . . .

When and Where Is This Throwdown Happening?

Here’s the court’s order setting the panel and schedule for argument. The argument takes place Friday, December 4, starting at 9:30 a.m. and running, officially, 2 hours and 20 minutes. I say “officially” because judges get to ask whatever they want and can keep the lawyers overtime if they feel like it. I’d say this is likely to run about 3 hours, but who knows?

You can find direction to the U.S. District Court of Appeals for the District of Columbia Circuit here on their website. The argument is in Room 20 (the “ceremonial courtroom”), the biggest courtroom they have. There will also be an overflow room. Nevertheless, expect the seating to go early.

 

So How Can I Watch?

 

The doors to the court open sometime between 7:30 and 8 a.m. Seating is on a first-come-first-serve basis, so you might want to get there a bit earlier. Please be aware that — unless you are a card-carrying member of the D.C. Bar or have reporter credentials — you will need to leave your cell phone (or any other device that has a camera or recording capability) at the security desk. I have no idea how getting reporter credentials works.

 

Even if you can get a phone in, you are not allowed to use it during argument. So no one will be live tweeting the coverage from inside or anything like that.

 

Any webcast?

 

Sadly, the court does not broadcast or webcast its arguments. Last time around the court released an audio recording of the oral argument within 24 hours.

 

Will you be there?

 

Happily for me, I am lead counsel for Public Knowledge, one of the Intervenors in the case, so I get a reserved seat.

 

Will you be arguing?

 

Intervenor public interest parties get 5 minutes of argument time in round one (more on that in a minute). Initially, we had planned a Hunger-Game-esque competition between myself, Matt Wood at Free Press, Sarah Morris at New America Open Technology Institute, Andrew Jay Schwartzman representing several civil rights groups, and every other public interest lawyer wanting to argue this landmark case. That proved too expensive, and there were copyright issues. So we pooled our money and hired ace litigator Kevin Russell of Goldstein & Russell to argue for the public interest groups collectively.

 

So How Will Argument Shake Down?

 

Again, you can get a much more thorough analysis if this from Kate Forscey’s blog here. This is just some highly technical geek tidbits.

 

The scheduling order sets four rounds of argument, ranked by amount of time scheduled by issue. As a general rule, the Petitioner argues first, then the Respondent (here, the FCC). Either side can cede some of its time to intervenors on its behalf. (Intervenors are actual parties to the case, as opposed to “friends of the court” (aka amici curiae), who are not.) Petitioners are also allowed to reserve some of their allotted time to get a chance to rebut the Respondents and Intervenors arguments. Just about all Petitioners do this, so expect to see Petitioners get a second shot after the FCC and Intervenors are done.

 

Also, while the lawyers arguing the case are bound by the time limits, judges are not. They can keep a lawyer out there as long as they want. So while the total time adds up to 2 hours 20 minutes, /i’m guessing it’s going to be more like 3 hours. This sucks rocks for me, as Dec. 4 is the earliest starting time for sundown/Shabbos. I will be very annoyed if I have to leave while the argument is still going on.

 

Round 1: Issues pertaining to reclassification of wireline broadband as Title II (excluding constitutional issues).

Total time: 60 minutes. 30 minutes for Petitioners US Telecom, et. al. (argued by Peter D. Keisler), 25 minutes for FCC (argued by FCC General Counsel Jonathan Sallet) and 5 minutes for Intervenors (argued by Kevin Russell, representing us public interest guys).

 

What to look for: Argument centers around whether the FCC has authority to classify broadband as Title II given the definition of “telecommunications services” in 47 U.S.C. 153(53). Assuming the FCC has authority, did the FCC give enough notice that it might classify broadband as Title II so that parties reading the FCC’s 2014 Notice of Proposed Rulemaking understood the FCC might go ahead and reclassify? Assuming the FCC has statutory authority, and gave sufficient notice, did the FCC do the right analysis and justify its decision under the proper standard of judicial review?

 

Which brings us to the question — what is the proper judicial standard of review? Usually, when an agency makes a decision, the reviewing court is supposed to defer to the agency’s interpretation of the statute and its findings of fact (this is called Cheveron deference, for the case from which it comes: Chevron U.S.A., Inc. v. National Resource Defense Council). Petitioners argue that, for reasons I won’t go into here, the FCC faces a higher standard of review here.

 

If the court gets by all this, it will focus on whether the FCC went too far on certain rules, like extending its jurisdiction to interconnection at the last mile and whether the FCC’s general conduct rule is too vague.

 

Round 2: Issues pertaining to reclassification of mobile broadband (separate from the wireline issues or the constitutional issues).

Total time: 40 minutes. 20 minutes for Petitioners (argued again by Peter D. Keisler), 15 minutes for FCC (argued by FCC Associate General Counsel Jacob Lewis), and 5 minutes for Intervenors (argued by Pantelis Michalopoulos of Steptoe & Johnson, representing a number of the commercial intervenors).

 

What to look for: In addition to the general definition of telecommunications service in 47 U.S.C. 153(53), a separate statute (47 U.S.C. 332) defines whether mobile services are treated as telecommunications services. In addition to meeting the general definition of telecom, a mobile service must also meet the definition of a “commercial mobile radio service” (CMRS) or be the “functional equivalent” of CMRS, to be treated as a Title II telecom service. Otherwise, the mobile service is a “private mobile radio service” (PMRS), and cannot be treated as a Title II telecom service.

 

So this round will mostly repeat the first round, but focused on a different statute (and probably without the deference argument, which is the same standard in Round 2 as it is for Round 1). In particular, Petitioners will argue that the FCC was wrong when it decided that mobile broadband is “interconnected with the public switched network” (the distinguishing feature of a CMRS service), and that even if wireline broadband providers had notice, mobile broadband providers did not have notice that the FCC might actually change the definition of “public switched network” to include IP addresses as well as traditional phone numbers.

 

Round 3: First Amendment and Other Issues Raised by Petitioners Alamo Broadband and Daniel Berninger.

Total Time: 20 minutes. 10 minutes for Petitioners (argued by Alamo’s attorney Brett Shumate of Wiley, Rein) and 10 minutes for FCC (argued again by Jacob Lewis).

 

What to look for: Alamo is a small wireless ISP that filed its own petition. Daniel Berninger is a serial Internet entrepreneur now running a VOIP company called Voice Communication Exchange Committee (VCXC). He also filed a separate petition. While the larger Petitioners did not raise First Amendment challenges, these two did, so they get their own argument round.

 

While you can never judge in advance, my feeling is that the court has sent a signal through the scheduling that it does not think much of the First Amendment argument. Constitutional arguments are a big deal, since if the court rules on constitutional grounds that as huge impact — going well beyond net neutrality. But the court has only allocated 10 minutes a side for the arguments.

 

Round 4: FSN Issues.

Total time: 20 minutes. 10 minutes for Petitioner FSN (argued by Earl Comstock of Eckert Seamans), 10 Minutes for the FCC (argued by Jacob Lewis).

 

What to look for: FSN is a small broadband provider that does not challenge the FCC’s Title II reclassification. Instead, they argue that the FCC should not have used its forbearance powers so freely and should have left ISPs (including its much bigger rivals) subject to several other provisions of the statute (like interconnection).

Again, because the court has scheduled such a small amount of time for these issues, it looks like a long shot.

 

What Can You Tell Us About The Judges?

 

The panel has 3 judges. Tatel, Srinivasan, and Senior Judge Williams. There have been a bunch of articles about the judges and how they might decide based on their past cases, political leanings, etc. I agree with Brian Fung that while some knowledge of the background of the judges is useful, it is dangerous to assume one can predict their opinion. But here are few brief observations based on cases.

 

Srinivasan — The most recent appointee and one of the three “Obama appointees.” Srinivasan has generally written opinions that give agencies considerable deference under Chevron. This is not universally true, however, such as when he signed off on a partial stay of the FCC’s prison phone rules in 2014.

 

Last August, however, Srinivasan authored the opinion in Homecare Association of America v. Weil (“HAA“), which has a fact pattern very similar to the one presented here. In HAA, the Department of Labor (DoL) had interpreted a provision of the Labor Act to exclude home care companions, including professional care givers (who would be covered if they were working per diem rather than as home care companions) provided by agencies to provide live-in assisted care. DoL kept getting pressed to change their interpretation, with the DoL’s refusal to change it interpretation going up to the Supreme Court in 2006. The Supreme Court found that the DoL statute was ambiguous, and therefore deferred to the agency.

 

Enter the Obama Administration, and the DoL changes its interpretation. Goes up on appeal. Srinivasan, writing for a unanimous panel, holds that because the Supreme Court had found the statute ambiguous and deferred to the agency interpretation in 2006, the statute remained ambiguous when the agency changed its mind and the court must give the same deference. The opinion also rejected the argument that because the DoL had reversed course after 35+ years of consistent interpretation, it had a higher burden because of the reliance engendered by the previous agency ruling.

 

That fact pattern seems remarkably similar to the one presented here. Accordingly, watch to see if Srinivasan pushes the telco guys on how they can distinguish this, or if he pushes the FCC on points that might distinguish it.

 

Williams — Williams has a considerable history of being skeptical of agency deference and being generally pro-regulatory. In particular, he beat up the FCC pretty thoroughly over efforts to impose cable ownership limits in 2001 (in an opinion joined by Judge Tatel). At the same time, he is not nearly as doctrinaire about it as some of his more recent colleagues. Williams is most likely to get into the constitutional question, since he invented this whole concept that if the appropriate level of First Amendment scrutiny is “intermediate scrutiny,” then the agency has a much higher burden in supporting the rule and gets much less deference. Look to see if Williams raises this point in the opening argument before we get to the constitutional issues.

 

Tatel — Tatel wrote the Comcast decision and the Verizon opinion. Needless to say, there is a big split between reclassification supporters and reclassification opponents on how to read Tatel’s mindset. As I noted at PK when the Verizon opinion first came out, we read the opinion as Tatel saying “O.K., I agree there’s a real problem if broadband providers can just unilaterally block traffic or demand payments. I buy off on the ‘virtuous cycle.’ But you can’t actually require non-discrimination unless you classify broadband providers as common carriers. So you’re choice, FCC. Either reclassify or stop being cute.”

 

Under this reading, as reflected in both the language of the 2015 Open Internet rules and the FCC’s briefs,  Tatel’s Verizon opinion provided a “road map,” which the FCC has faithfully followed. Think of the FCC as an elementary school child handing in a paper and getting back a frowny face with a note “you can do better.” Taking the criticism to heart, the FCC diligently makes the corrections marked up by Mr. Tatel and resubmits the paper. This time the FCC gets a gold star and a note “Nice improvement!”

 

Opponents prefer to view the combination of the Comcast decision and the Verizon decision as a general rebuke for trying to “regulate the Internet” — regardless of what the actual words of the opinion might say. They see this as being more like a stubborn child who, having been told twice that his elementary school essay on “how a spent my summer” cannot include adventures with a talking tiger, submits yet another essay on adventures with a talking tiger, only this time going to Mars instead of going back in time. They expect to see Judge Tatel treat this as a “slap in the face” and come down hard on the FCC.

 

Look for Judge Tatel to press either side on wha the opinion actually says. “Did we really say that? Or did we say something more/less general?” That kind of thing.

 

As always, you can never really tell from oral argument how things are going to go down. In a case this complicated, I expect there to be enough ambiguity about the outcome for everyone to declare victory.

 

When Does The Court Decide?

 

The court will not decide on Friday. Given that the court granted the request from all parties to do this on an expedited basis, I expect an opinion sometime in February or March. I suppose it could be as early as January if they work through the holidays, but I kind of doubt that would happen.

 

Once the opinion is issued, parties that lose can either appeal to the whole court for rehearing en banc or go directly to the Supreme Court. I’m not gonna try to speculate on how likely that is until we see an opinion.

 

Conclusion

 

Whatever happens, I will be damn glad when we are done with oral argument. After 1more than 15 years of working on this stuff, I am damned tired of it and would like to see it settled.

 

Stay tuned . . . .

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