Webinar about the Title II Lawsuit, Chevron, and the First Amendment

by on October 27, 2015 · 0 comments

On October 7th I appeared on a webinar hosted by Prof. Barry Umansky and Ball State’s Digital Policy Institute about the FCC’s Title II case before the DC Circuit Court of Appeals, US Telecom Association v. FCC. The other panelists were Andrew Schwartzman of Georgetown University and Stuart Brotman of Harvard Law School and the Brookings Institution. Check it out, but here’s a brief summary of our hour-long discussion.

Much of our discussion was about whether and how the Court will analyze the FCC’s Open Internet rules under the Chevron doctrine. Andrew argues that this is a Chevron case, that “telecommunications service” is ambiguous in the Communications Act, and that the FCC’s reinterpretation of telecommunications to include Internet access is reasonable. I disagreed and argued that classifying Internet access service as a “telecommunications service” is unreasonable given technical realities and Sections 620, 230, and 231 of the Communications Act.

Later, Andrew contended that ISPs are clearly common carriers and the FCC is simply codifying this reality. Again, I disagreed. ISPs, for instance, reserve the right to revoke service from people based on the content they send or post (like being abusive, harassing, or hateful online). Common carriers don’t do that. ISPs filter content they suspect customers don’t want (like spam). Common carriers don’t do that. ISPs offer customized access services (like parental controls and Web whitelists and blacklists). Common carriers don’t do that.

Stuart raises the point that the deferential Chevron doctrine might not be applied at all. Making this case to the Court–that regulating most of the Internet is too socially and economically significant to receive Chevron deference–seems to be dominant legal strategy for Title II opponents. As Prof. Dan Lyons, points out in a blog post this week, the Supreme Court seems to be increasingly hostile to agencies’ major reinterpretations of law.

We’ll see. I actually agree with my copanelist Andrew that the DC Circuit will tend to view this as a garden-variety administrative law case. Courts are generally deferential to expert agencies on reinterpreting the law and, as Lyons notes, it’s still pretty rare for courts to find that an agency decision does not get substantial deference.

For that reason, I point out in the webinar that the perhaps the strongest argument for the ISPs is raised by Alamo Broadband and Dan Berninger–that the Open Internet rules violate the First Amendment. I wrote recently why the Open Internet rules may violate the First Amendment. I note in the webinar that, unlike administrative law questions, courts are not deferential to agencies when the First Amendment is at issue. Courts interpret the coverage of the First Amendment broadly and the First Amendment is increasingly an effective tool to strike down regulations that implicate speech.

We wrap up the webinar by discussing whether a legislative compromise is possible before the 2016 elections (no). There will more analysis of the legal briefs before the December oral arguments and I’d expect two major issues, whether Chevron applies and whether the rules violate the First Amendment, to be in the conversation.

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