By Eric Lieberman
Judge Brett Kavanaugh, who was nominated to the U.S. Supreme Court, once dissented in a critical case dealing with national telecommunications policy while serving on the D.C. Court of Appeals.
In the legal dispute, U.S. Telecom Association v. Federal Communications Commission (2017), the industry group argued that the government agency’s 2015 Open Internet Order, which classified broadband service as Title II public utility, was illegitimate since it lacked the mandate to do so.
And Kavanaugh agreed in May 2017 as one of two dissenters in an appeal to rehear the case en banc, meaning in front of all possible judges in a jurisdiction.
“Because Congress never passed net neutrality legislation, the FCC relied on the 1934 Communications Act, as amended in 1996, as its source of authority for the net neutrality rule,” Kavanaugh wrote. “But that Act does not supply clear congressional authorization for the FCC to impose common carrier regulation on Internet service providers. Therefore, under the Supreme Court’s precedents applying the major rules doctrine, the net neutrality rule is unlawful.”
Proponents of the 2015 Open Internet Order — also known as “net neutrality” rules — including former-FCC Chairman Tom Wheeler, who swiftly tried to enact the lengthy list of regulations, argue that it’s necessary to curtail internet service providers from engaging in practices some more apparently unfair than others. Internet service providers could, for example, slow the speed of their competitors’ websites.
Opponents, however, contend that the rules are a pseudo-solution in search of a not-yet-existent problem. They argue that giving the government intensified control over the internet would only complicate the industry’s attempts to offer broadband more widely and stymie progresstoward a comprehensive 5G infrastructure in the U.S.
Also called the 2015 Title II Order, the mandate “was a regulatory sledgehammer with ‘vast economic and political significance’ but without Congressional authorization,” Bret Swanson, a visiting fellow at the American Enterprise Institute, and a scholar at the U.S. Chamber of Commerce Foundation, told The Daily Caller News Foundation. “Essentially, the FCC gave itself massive authority that Congress had withheld.”
Along with the lack of jurisdiction, Kavanaugh also believes that such regulations infringe upon companies’ free expression rights.
“The net neutrality rule violates the First Amendment to the U.S. Constitution.”
Under the Supreme Court’s landmark decisions in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market. Therefore, under the Supreme Court’s precedents applying the First Amendment, the net neutrality rule violates the First Amendment.
While Kavanaugh’s interpretation seems to rely on precedent and avoids altering policy from the bench, “his keen understanding of administrative law bodes well for the internet and for innovation across the rest of the economy,” Swanson said. “And his reverence for the First Amendment is increasingly crucial at a time when this bedrock principle is being questioned.”
Kavanaugh also wouldn’t dispute the Supreme Court from a lower court.
“To state the obvious, the Supreme Court could always refine or reconsider the major rules doctrine or its decisions in the Turner Broadcasting cases,” he continued in his dissent. “But as a lower 3 court, we do not possess that power. Our job is to apply Supreme Court precedent as it stands.”
The judges ultimately ruled in favor of the net neutrality rule and chose not to rehear the case. But the battleover net neutrality through the courts is ongoing, just as it isin other sectors of government.
Fifty senators — 47 Democrats, two independents and one Republican, Sen. Susan Collins of Maine — originally endorseda legislative maneuver known as the Congressional Review Act (CRA) to reverse the FCC’s most recent decision to undo the 2015 regulations.
While there’s little prospect of moving past the House and to the president’s desk, the CRA legislation initially looked like it would be successful in the Senate because of Sen. John McCain’s health-induced absence. But two more Republicans — Sens. Lisa Murkowski of Alaska and John Kennedy of Lousiana — joined Collins in reaching across the aisle, reversing their earlier position. Murkowski, for example, voted against classifying the internet as a Title II utility rather than Title I — the crux of the net neutrality argument — in 2009.
“Judge Kavanaugh has impressive credentials and extensive experience, having served more than a decade on the D.C. Circuit Court of Appeals,” Collins said in a statement. “I will conduct a careful, thorough vetting of the President’s nominee to the Supreme Court, as I have done with the five previous Supreme Court Justices whom I have considered. I look forward to Judge Kavanaugh’s public hearing before the Senate Judiciary Committee and to questioning him in a meeting in my office.”
Democratic Sen. Ed Markey of Massachusetts, who introduced the CRA bill, was more critical of Kavanaugh.
“Brett Kavanaugh is a right-wing ideologue selected off the ultra-conservative Federalist Society’s judicial wish list,” Markey said. “Judge Kavanaugh’s record on important issues such as opposing the right to health care, consumer and environmental protections, and a free and open internet portends a rubber stamp for a conservative, right-wing agenda that would move us backwards as a nation.”
But it’s not clear how worrisome Kavanaugh is to net neutrality supporters, specifically.
The Center for Democracy & Technology (CDT), for example, supported the DC Circuit court’s decision to not rehear the case in which the telecom industry opposed FCC regulations — the one Kavanaugh dissented — but trusts that Kavanaugh will not breach protocol.
There is, for example, a petition seeking to appeal the court’s decision that denied a rehearing.
“If Judge Kavanaugh is confirmed to the Supreme Court, and the Court decides to hear the appeal of the 2015 order, my expectation is that Justice Kavanaugh will recuse himself from taking part in the case, since he ruled on the case at the DC Circuit,” CDT vice president of strategy and general counsel Lisa Hayes told TheDCNF.
“This is fairly standard practice for a Supreme Court Justice — for example, Justice Sotomayor recused herself from Ziglar v. Abassi, because she was part of the Second Circuit when it heard a consolidated case in the lower court, even though she did not take part in the lower court decision,” Hayes said.
Hayes also believes that Kavanaugh would recuse himself from a second, similar case that challenges the FCC’s most recent decision to revoke the 2015 Open Internet Order because she feels there’s enough of a conflict of interest while he awaits his confirmation.
“For example,” she said, “Merrick Garland recused himself from DC Circuit cases while his nomination was pending.”
Kavanaugh doesn’t have to recuse himself and shouldn’t, project director at Georgetown Center for Business and Public Policy project director Larry Downes said.
“Recusal is only used if there is a conflict of interest. He wasn’t a lawyer for the party,” Downes told TheDCNF. “There isn’t a basis for the recusal just because he wrote a dissent for a procedural case.”
Nevertheless, the prospect of recusal isn’t the only concern of net neutrality supporters. An organization that works on similar topics and is often aligned with CDT, the Electronic Frontier Foundation, sees Kavanaugh as more unsettling given his views and history of adjudications — and not just for telecommunication regulations.
“Judge Kavanaugh’s past approaches to net neutrality and defense of the [National Security Agency] illegal collection of Americans’ call records … are concerning,” EFF Legal Director Corynne McSherry told TheDCNF. “We hope the Senate will press him to articulate his views on these crucial issues.”
But the concern may be a non-issue, since, according to Downes, there’s been very little FCC cases that have made it to nation’s highest court in the last several years.
“There’s been some speech-related cases, but nothing really about agency decision,” he said.
Also, since four justices are required to accept a petition before it goes on the docket, it seems unlikely to Downes that a case so topical and mired in conflicting, coinciding procedural disputes, would be accepted.
“Kavanaugh would certainly be interested in hearing cases about regulatory power,” Downes who worked for years as a clerk in the U.S. Seventh Circuit Court of Appeals, said. “He’s expressed strong views on that. But I don’t know if there are three other justices who are interested in that, or more specifically net neutrality.”
There’s “not a whole lot of interest in technology-related cases. Justice Breyer, maybe. Justice Kagan, maybe,” but not from anybody else, really, Downes continued.
If it comes before the court, it would be more about agency deference than debating the nuances of technology, because, like Congress, they don’t understand it, and don’t really want to, said Downes.
“The Supreme Court tries to do as little as possible,” he continued. “They only weigh in on constitutional law when it needs to be corrected or rehearsed. They don’t operate by seeking out topical issues.”
Rather, he notes that they tend to go for cases where the issue clearly presents a bigger question they are interested in. If there is other underlying procedural points of contention, they’ll usually wait.
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