D.C. Memo: Showdown in the Sixth Circuit - FCC Today Gets to Defend Net Neutrality Regs
◾ NCTA Wants More Time to Report Retrans Blackouts ◾ Wheeler Fears Trump Internet Takeover (so did Rosenworcel in 2020) ◾ Comcast Lost 87,000 Broadband Subs in Q3 ◾ FCC to Review Subsea Cables
Net Neutrality: A top FCC lawyer today has a date in federal court in Cincinnati to defend FCC Chairwoman Jessica Rosenworcel's Net Neutrality rules that placed broadband ISPs under close federal supervision. FCC Associate General Counsel Jacob M. Lewis is expected to tell the court that classifying broadband ISPs as common carriers offering a telecommunications service under Title II of communications law was the best reading of the law and consistent with a 2005 Supreme Court precedent that the FCC believes gave it leeway to regulate ISPs either lightly or strictly. "No one disputes that the Communications Act gives the FCC clear authority to regulate telecommunications services under Title II," the FCC told the U.S. Court of Appeals for the Sixth Circuit in a September brief. "The most natural reading of the Communications Act, as applied to how broadband operates and is offered today, is that broadband offers telecommunications service." A panel of the Sixth Circuit stayed the FCC's rules on Aug. 1 based on the highly likely notion that the rules violated the Supreme Court's Major Question Doctrine (MQD). Under that judicial canon, the FCC is barred from adopting regulations of vast economic and political significance without clear congressional authorization. "The [ISP] petitioners are likely to succeed on the merits because the final rule implicates a major question, and the [FCC] has failed to satisfy the high bar for imposing such regulations," the Sixth Circuit panel said in its stay order. ISP lawyers are expected to rely on the MQD in urging the court to invalidate the Net Neutrality regulations. Oral arguments are scheduled to begin at 8:30 a.m. ET before Circuit Judges Richard Allen Griffin, Raymond M. Kethledge, and John K. Bush -- all appointed by Republican presidents. Jeffrey Wall, an attorney at Sullivan and Cromwell, is scheduled to appear for the ISPs, and Daniel Woofter, an attorney at Goldstein, Russell and Woofter, for public interest intervenors.
