Now that the U.S. Court of Appeals for the D.C. Circuit won't hear en banc review of FCC net neutrality regulation (see 1705010038), focus shifts to the Supreme Court. Conventional wisdom is justices are unlikely to grant cert to hear an appeal, especially since the FCC is pursuing a do-over. Some opponents of the order think conventional wisdom could be wrong. Industry parties that sought en banc D.C. Circuit review didn't comment, including USTelecom, CTIA, AT&T, CenturyLink, NCTA, American Cable Association and Alamo Broadband.
Major Questions Doctrine
A court denial of further challenges to the FCC 2015 net neutrality order was decided 6-2 by the active judges of the U.S. Court of Appeals for the D.C. Circuit (see 1705010013). The six judges voted Monday to deny petitions for en banc rehearing of a June ruling by a three-judge panel that upheld the FCC order, which also reclassified broadband to be under Title II of the Communications Act. Two judges dissented and three others didn't participate in the ruling in USTelecom v. FCC, No. 15-1063.
Senators started probing Supreme Court nominee Neil Gorsuch Tuesday on the 1984 Chevron doctrine, involving courts’ deferral to agencies. Questions of deference are considered important on the legality of certain FCC actions. Gorsuch sought to avoid giving any definitive answer on whether he would push to abolish Chevron, as some Senate Democrats said seemed likely, instead pledging he would bring an open mind. The Senate Judiciary Committee is in the midst of a multiday confirmation hearing that began Monday (see 1703200051).
Supreme Court pick Neil Gorsuch appears highly skeptical about broad deference justices have given expert agencies, and he has cited the FCC as a prime example. Gorsuch, the 10th U.S. Circuit Court of Appeals judge whom President Donald Trump tapped to fill the seat of the late Justice Antonin Scalia, is seen by FCC watchers as a likely vote to rein in the deference the high court has given agencies under its 1984 Chevron precedent, including in the 2005 Brand X broadband ruling.
Qualcomm is likely to still face multiple tough legal challenges to the company’s licensing of its patents for baseband processors used in cellphones and other products, even if a new forthcoming Republican majority FTC chooses to reverse course on its antitrust complaint, said industry and public interest lawyers in interviews. The FTC claimed in a complaint filed this month that Qualcomm “engaged in exclusionary conduct that taxes its competitors' baseband processor sales, reduces competitors' ability and incentive to innovate, and raises prices paid by consumers for cell phones and tablets” (see 1701170065). Apple filed a lawsuit last Monday seeking $1 billion in damages on claims Qualcomm overcharged the smartphone manufacturer “billions of dollars” for patent licenses (see 1701230067).
Even before the FCC released its net neutrality rules on March 12, 2015, ISP interests signaled they would take the agency to court. The likes of CTIA and NCTA predicted lawsuits, as reported in Part I of this Special Report (see 1609150017). Even FCC officials predicted such suits -- accurately, as it turned out. This Part II focuses on how litigation came to pass. Part III reports how the commission won an initial court case (see 1610130014).
The U.S. Court of Appeals for the D.C. Circuit surprised many on both sides of the fight over net neutrality rules and broadband reclassification when it upheld the FCC across the board. After Dec. 4, 2015, oral argument on industry challenges to the 2015 rules (see Part III of this Special Report, 1610130014), the D.C. Circuit issued its decision June 14. That ruling was the subject of two Communications Daily Bulletins that day (see 1606140010 and 1606140012) and many more later stories. This final Part IV of the net neutrality Special Report focuses on the court ruling and continuing challenges.
FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.
Observers see the 2016 Republican Party platform generally aligning with traditional Republican telecom positions, despite inclusion of a line saying ISPs shouldn't pick winners or losers. Delegates largely preserved the platform rough draft circulating among Republican National Convention officials more than a week ago (see 1607110057). The 66-page final document evolved markedly in two instances, based on the version adopted and released for the first time Monday at the GOP convention in Cleveland. Presumptive GOP presidential nominee Donald Trump hasn't released a telecom agenda, unlike presumptive Democratic nominee Hillary Clinton.
It appears all but certain industry will appeal the U.S. Court of Appeals for the D.C. Circuit’s decision Tuesday upholding the FCC 2015 net neutrality rules (see 1606140023). Less certain is whether the Supreme Court will take the case. A complicating factor is that four of the remaining eight justices would have to agree to hear the case, and, with the death of Justice Antonin Scalia, that will be more difficult until his slot is filled, court watchers said in interviews Tuesday.