D.C. Memo: On Net Neutrality, Who Has the Best Reading of the Law?
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Net Neutrality: Judges on the U.S. Court of Appeals for the Sixth Circuit spent most of yesterday's one-hour oral argument over the FCC Net Neutrality rules quizzing lawyers on the complexities of key statutory terms in federal communications law — especially to what extent broadband ISPs offer a lightly regulated "information service" or a common carrier "telecommunications service." Under the Supreme Court Loper Bright Enterprises v. Raimondo decision, the Sixth Circuit is tasked with finding the best reading of the law. "The statute actually says in its text, we want these services to be unfettered by federal and state regulation," said Jeffrey Wall, attorney for the ISPs challenging the FCC's decision to classify ISPs as a telecommunications service subject to close federal supervision. "I think we have by far the most natural reading of the text ..." FCC Associate General Counsel Jacob M. Lewis disagreed, urging the court to back his agency's telecommunication service classification. "We think it's the best reading of the statute. We think that's the issue in the case," he said. Wall and Lewis tangled before Circuit Judges Richard Allen Griffin, Raymond M. Kethledge, and John K. Bush -- all Republican presidential appointees. Kethledge strongly suggested that broadband was an information service because it offered the capability to access information on the Internet. "It's the New York Times [website], but your broadband provider has given you that capability by letting you get there on that highway. So what's wrong with that? I mean, why isn't that offering the capability from Spectrum, or whatever it is?" Kethledge said at one point. Kethledge indicated he wanted to decide the case based on statutory interpretation and not on the Supreme Court’s Major Questions Doctrine, but Griffin was open to MQD arguments. "I'm interested in the text as well, but I'm also interested in major question," Griffin said. Wall told the court that the FCC's rules violated the MQD. "I have complete confidence that the Supreme Court has not gotten rid of the major questions doctrine and would apply it in a case tomorrow if it thought that the conditions for that doctrine were triggered," Wall said. The FCC rules were stayed on Aug.1 by a different Sixth Circuit panel. It could took a few months before the new Sixth Circuit panel issues a new ruling. The audio of the oral arguments is here.
