Public Knowledge
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On Friday, Petitioners (including Public Knowledge) finally got to make their case in court that the Federal Communications Commission’s reckless abdication of responsibility over broadband was illegal. For about five hours, in the ceremonial courtroom of the E. Barrett Prettyman United States Courthouse, in front of D.C. Circuit Judges Millett, Williams, and Wilkins, attorneys for Petitioners, for the FCC, and for intervenors on both sides got a grilling in a court that has become a regular forum for disputes over the status of broadband and the lawfulness of net neutrality rules.
The sheer length of the arguments presented on Friday -- where each individual arguing attorney was given at least double their allotted time to make their arguments and respond to voluminous questioning -- shows that this is not an open-and-shut case. There are many complex legal and factual arguments and claims to deal with. Both sides got hard questions, but on balance it appears that the FCC bore the brunt of skeptical questioning from the bench, and despite Judge William's occasional softballs, it appeared unable to cope with a number of very tough but basic questions from Judge Millett in particular.
Petitioners and intervenors supporting them made many arguments as to why the FCC’s action was unlawful, of course, and those who are truly interested in the case should read the briefs, and the transcript of the argument when it is available. To highlight some of them:
As for the FCC's arguments, it hoped to start and end with the Supreme Court precedent in Brand X. Under Brand X, under some circumstances and with the right factual findings, the FCC can classify broadband as an information service. No one disputes this much. But the Petitioners’ lead argument explained how the FCC here departed from, rather than followed, Brand X, in effect deleting Title II and the definition of telecommunications out of the statute. Fortunately for Petitioners, questions regarding the FCC’s adherence to Brand X came from the bench as well. Judge Millett in particular pushed back on the FCC, noting that Brand X dealt with the ambiguity of the word "offer," while the FCC's new argument -- one designed to make it so that broadband must be considered an information service -- centers on the word “capability.” The FCC's current theory is that because broadband offers the capability of accessing information services (websites, etc.), it is itself an information service. But as Judge Millett noted, this seems to make it so that there cannot be any telecommunications services at all, since any telecommunications service is capable of accessing an information service. Under her questioning, FCC General Counsel Thomas Johnson failed to distinguish broadband from something that was concededly a telecommunications service, telephony. His various attempts simply lacked any grounding in the statute or the logic of the FCC's reasoning.
Judge Millett’s questioning also revealed another absurdity in the FCC's position. If simply providing a communications conduit constitutes a “capability” under the information services definition, and since information services, again under the definition, are offered “via telecommunications,” the FCC's current statutory construction seems to amount to defining an information service as “telecommunications ... offered via telecommunications.” Although agencies have wide latitude to adopt readings of statutes that they prefer, those interpretations must be reasonable, and must not be absurd or contradictory. Further, under the Administrative Procedure Act, agencies are required to grapple with the consequences of their interpretations. Failing to meaningfully distinguish broadband from telephone service could well be held by the court to be a failure of reasoned decision-making.
Oral argument might be the most visible part of an appellate case, but it’s not necessarily the most important. Both sides have laid out their arguments with more precision and detail in the actual briefs, and as the judges (and their clerks) dig into this over the next few weeks and months they will undoubtedly clarify their thinking. It is not surprising that Judge Williams was sympathetic to the FCC here, as he dissented from past decisions upholding net neutrality and the classification of broadband as telecommunications, and appears convinced of the policy merits of the FCC's position -- though even he appeared receptive to certain technical and procedural arguments put forth on the other side. Judge Millett put forth a surprising barrage of tough questions to the FCC, and though less vocal, Judge Wilkins also appeared skeptical of the breadth of the FCC's actions.
On balance, I come away from the argument fairly confident of a victory for Petitioners, though as to how sweeping of a victory, and on what precise grounds, it is as difficult as ever to say.
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