Did FCC Read Judge Tatel Right in Pursuing Title II over Section 706?

The central overriding question in the USTelecom v. FCC case challenging the FCC’s Open Internet Order may be: did the FCC read Judge Tatel right in that he de facto guided the FCC to pursue Title II to create the most solid legal foundation for net neutrality? That has been the public legal mantra of the FCC and the net neutrality movement for well over a year.

In the oral arguments last Friday before the D.C Circuit Court of Appeals, what did Judge David Tatel potentially signal about the Title II over 706 legal premise of the FCC’s case?

Please consider Judge David Tatel’s very persistent and telling line of questioning of FCC General Counsel Jonathan Sallet about the FCC’s explanation of why the FCC abandoned its 706 regulatory approach in favor of reclassifying, because it may be the most significant “tell” of how this case could turn out, because Judge Tatel is widely-believed to write this decision, given he authored the most relevant net neutrality precedents, Verizon v. FCC in 2014 and Comcast v. FCC in 2010.  

Judge Tatel’s ‘706 vs. Title II’ line of questioning is telling because it focuses like a laser on what is the natural fulcrum of this case: why the FCC changed its mind mid-process from basing the FCC’s net neutrality policy and authority on Section 706, to basing it on Title II.

Arguably everything that matters in this case flows from that single organizing, foundational FCC decision, given that all of the legal and APA challenges to this case result from, and rotate around, that fateful ‘706 vs. Title II’ FCC decision.  

That is why we will focus on Judge Tatel’s grilling of FCC General Counsel Jonathan Sallet in the Court’s audio record of the oral arguments here from 35:00-38:45. I have transcribed below only Judge Tatel’s line of questioning in order to spotlight his focus and determination in getting a “crisp” answer from the FCC to this question that is obviously important to Judge Tatel. 

Judge Tatel to FCC General Counsel Jonathan Sallet:

“I ask you a non-Brand X, non statutory question which is that, it seems to this court’s Verizon decision, the Commission seemed headed for regulating under 706,  you know, that the Commission even called it, the blue print offered by the DC Circuit  … that’s the Commission’s word -- not mine. And so what, how do you describe the Commission’s reason for abandoning that approach? What’s the policy explanation for that decision? …”

“The question is what after the Verizon decision; after this Verizon’s court’s decision, after the Commission focused its attention on proceeding under 706? What changed its mind?  It couldn’t have been a change in circumstances -- right? The circumstances are all essentially the same. What is the crispest answer? …I couldn’t find it in the order.”

“What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify? That’s my question. It couldn’t be changed facts; it had to be a different perception of what was happening. What is that?”

What does Judge Tatel’s focused and persistent line of inquiry suggest?

First at the start, Judge Tatel said he was asking a “non-Brand X, non-statutory question.” Well what kind of question would an appeals court judge be asking of an expert agency that is seeking substantial court deference? While he did not say so, the strong implication here is that his oft-repeated core question was relevant to the court’s thinking about how much deference the FCC is due in this case.

How fact-based and expert was the FCC’s decision-making process? How independent and objective was the FCC’s process? How thorough and fair in notice and due process was the FCC’s rulemaking process here? How reasonable was the process and thinking of why and how the FCC “changed its mind” in this process?

Anyone that listened to the oral arguments would glean that all three judges were well aware of the unusual external circumstances and pressures surrounding the FCC’s decision-making process because they were briefed on them, and they were also explained in the challenges to the FCC’s APA/due process.

My point here, is that if Judge Tatel and the court begin their thinking with questions about how much deference the FCC is due in the new legal environment of a Roberts’ Court, that is characterized by limiting the amount of Chevron deference expert agencies are judicially due, this is not a place the FCC would like this court to start, as it is a starting point of factual weakness rather than strength.  

Second, despite earlier asking the Petitioner’s lawyer Peter Keisler “don’t you have to start with Brand X?” this later line of questioning suggests Judge Tatel is starting his thinking from his Verizon decision and what led up to the FCC’s decision to “abandon” 706 for Title II. Given that Judge Tatel asserted that the circumstances and facts did not change, and “it had to be a different perception of what was happening,”  (and the FCC’s General Counsel did not disagree with those Judge Tatel assertions), it appears Judge Tatel has established a type of chronological starting point in his thinking of this case. That chronological starting point of deciding to abandon Judge Tatel’s Verizon 706 precedent would appear to logically come before thinking about, and consideration of, the FCC’s subsequent thinking about justifying Title II via Brand X. 

My point here is that Judge Tatel apparently found a big hole in the FCC’s justification of its core decision in this case. Judge Tatel apparently established: first that he “couldn’t find” in the FCC’s order (the record) an explanation for the FCC’s dramatic 180 degree change in thinking about the legal authority the FCC has over net neutrality and the Internet that it did not assert in Verizon v. FCC or Comcast v. FCC; and second that there were no changes in facts since the Verizon decision two years ago.

It is problematic for the FCC that all of the legally controversial new mandates that the FCC now wants to dictate under Title II -- i.e. applying Title II to info services, interconnection, and mobile; banning paid prioritization; and inventing a vague and apparently unbounded Internet Conduct Standard -- rest on the bearing point of a foundational legal question, that was not justified at all in the record of the FCC’s Open Internet Order, and that apparently was not fact-based.

It appears the FCC needs this Court to completely ignore a lot of what it knows about this case, in order to uphold it in its entirety.

Third, if Judge Tatel somehow started with a predisposition of granting the FCC substantial Chevron deference to uphold the strongest possible FCC net neutrality rules under Title II (as the FCC and net neutrality proponents have long implied and trumpeted publicly to justify their actions), why would Judge Tatel ask the same core question, in literally nine different ways, that all have the practical effect of spotlighting glaring core policy, explanatory, and factual omissions in the FCC’s record, argument, and justification that could be used to overturn his purported pro-Title II subsequent decision on appeal to the Supreme Court?

In addition, if Judge Tatel, or the D.C. Circuit Court of Appeals somehow had the predisposition to help the FCC legally sustain its Title II reclassification justification sight unseen, why would Judge Tatel have disavowed the FCC’s use of the word, “blueprint” in noting, in an apparent annoyed tone that, “that’s the Commission’s word -- not mine”? (Listen at 35:17-24.)

Conclusion

If Judge Tatel’s thinking about of this case starts with his tightly and expertly written Comcast and Verizon precedents and then moves next to the whole process of how this case came before his court -- i.e. the decision over which what legal authority empowers the FCC to most strongly enforce net neutrality -- it appears very problematic for the FCC.

Everything that the FCC and net neutrality proponents want out of this case – i.e. substantial court deference to its asserted expert, independent, objective, decision-making; and the court fully upholding its Title II reclassification power to regulate Internet info services, interconnection, mobile, paid prioritization and Internet conduct going forward – flows directly and completely from the FCC’s seminal decision to “change its mind” and “abandon” its 706 approach for Title II.  

The reader has to decide on his/her own, is the FCC’s case built upon an accurate read of Judge Tatel and his Verizon v. FCC decision? Or not?

Methinks not.

 

 

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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

Part 2: Why FCC proposed net neutrality regs unconstitutional, NPR Online Op-ed [9-24-09]

Part 3: Takeaways from FCC's Proposed Open Internet Regs [10-22-09]

Part 4: How FCC Regulation Would Change the Internet [10-30-09]

Part 5: Is FCC Declaring 'Open Season' on Internet Freedom? [11-17-09]

Part 6: Critical Gaps in FCC’s Proposed Open Internet Regulations [11-30-09]

Part 7: Takeaways from the FCC's Open Internet Further Inquiry [9-2-10]

Part 8: An FCC "Data-Driven" Double Standard? [10-27-10]

Part 9: Election Takeaways for the FCC [11-3-10]

Part 10: Irony of Little Openness in FCC Open Internet Reg-making [11-19-10]

Part 11: FCC Regulating Internet to Prevent Companies from Regulating Internet [11-22-10]

Part 12: Where is the FCC's Legitimacy? [11-22-10]

Part 13: Will FCC Preserve or Change the Internet? [12-17-10]

Part 14: FCC Internet Price Regulation & Micro-management? [12-20-10]

Part 15: FCC Open Internet Decision Take-aways [12-21-10]

Part 16: FCC Defines Broadband Service as "BIAS"-ed [12-22-10]

Part 17: Why FCC's Net Regs Need Administration/Congressional Regulatory Review [1-3-11]

Part 18: Welcome to the FCC-Centric Internet [1-25-11]

Part 19: FCC's Net Regs in Conflict with President's Pledges [1-26-11]

Part 20: Will FCC Respect President's Call for "Least Burdensome" Regulation? [2-3-11]

Part 21: FCC's In Search of Relevance in 706 Report [5-23-11]

Part 22: The FCC's public wireless network blocks lawful Internet traffic [6-13-11]

Part 23: Why FCC Net Neutrality Regs Are So Vulnerable [9-8-11]

Part 24: Why Verizon Wins Appeal of FCC's Net Regs [9-30-11]

Part 25: Supreme Court likely to leash FCC to the law [10-10-12]

Part 26: What Court Data Roaming Decision Means for FCC Open Internet Order [12-4-12]

Part 27: Oops! Crawford’s Model Broadband Nation, Korea, Opposes Net Neutrality [2-26-13]

Part 28: Little Impact on FCC Open Internet Order from SCOTUS Chevron Decision [5-21-13]

Part 29: More Legal Trouble for FCC’s Open Internet Order & Net Neutrality [6-2-13]

Part 30: U.S. Competition Beats EU Regulation in Broadband Race [6-21-13]

Part 31: Defending Google Fiber’s Reasonable Network Management [7-30-13]

Part 32: Capricious Net Neutrality Charges [8-7-13]

Part 33: Why FCC won’t pass Appeals Court’s oral exam [9-2-13]

Part 34: 5 BIG Implications from Court Signals on Net Neutrality – A Special Report [9-13-13]

Part 35: Dial-up Rules for the Broadband Age? My Daily Caller Op-ed [11-6-13]

Part 36: Nattering Net Neutrality Nonsense Over AT&T's Sponsored Data Offering [1-6-14]

Part 37: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]

Part 38: Why Professor Crawford Has Title II Reclassification All Wrong [1-16-14]

Part 39: Title II Reclassification Would Violate President's Executive Order [1-22-14]

Part 40: The Narrowing Net Neutrality Dispute [2-24-14]

Part 41: FCC’s Open Internet Order Do-over – Key Going Forward Takeaways [3-5-14]

Part 43: The Multi-speed Internet is Getting More Faster Speeds [4-28-14]

Part 44: Reality Check on the Electoral Politics of Net Neutrality [5-2-14]

Part 45: The “Aristechracy” Demands Consumers Subsidize Their Net Neutrality Free Lunch [5-8-14]

Part 46: Read AT&T’s Filing that Totally Debunks Title II Reclassification [5-9-14]

Part 47: Statement on FCC Open Internet NPRM [5-15-14]

Part 48: Net Neutrality Rhetoric: “Believe it or not!” [5-16-14]

Part 49: Top Ten Reasons Broadband Internet is not a Public Utility [5-20-14]

Part 50: Top Ten Reasons to Oppose Broadband Utility Regulation [5-28-14]

Part 51: Google’s Title II Utility Regulation Risks – An Open Letter to Investors [6-3-14]

Part 52:  Exposing Netflix’ Biggest Net Neutrality Deceptions [6-5-14]

Part 53: Silicon Valley Naïve on Broadband Regulation (3 min video) [6-15-14]

Part 54: FCC’s Netflix Internet Peering Inquiry – Top Ten Questions [6-17-14]

Part 55: Interconnection is Different for Internet than Railroads or Electricity [6-26-14]

Part 56: Top Ten Failures of FCC Title II Utility Regulation [7-7-14]

Part 57: NetCompetition Statement & Comments on FCC Open Internet Order Remand [7-11-14]

Part 58: MD Rules Uber is a Common Carrier – Will FCC Agree? [8-6-14]

Part 59: Internet Peering Doesn’t Need Fixing – NetComp CommActUpdate Submission [8-11-14]

Part 60: Why is Silicon Valley Rebranding/Redefining Net Neutrality?  [9-2-14]

Part 61: the FCC’s Redefinition of Broadband Competition [9-4-14]

Part 62: NetCompetition Comments to FCC Opposing Title II Utility Regulation of Broadband [9-9-14]

Part 63: De-competition De-competition De-competition [9-14-14]

Part 64: The Forgotten Consumer in the Fast Lane Net Neutrality Debate [9-18-14]

Part 65: FTC Implicitly Urges FCC to Not Reclassify Broadband as a Utility [9-23-14] 

Part 66: Evaluating the Title II Rainbow of Proposals for the FCC to Go Nuclear [9-29-14]

Part 67: Why Waxman’s FCC Internet Utility Regulation Plan Would Be Unlawful [10-5-14]

Part 68: Silicon Valley’s Biggest Internet Mistake [10-15-14]

Part 69: Will the FCC Break the Internet? [10-22-14]

Part 70: Net Neutrality Has Become an Industrial Policy [10-31-14]

Part 71:  The Federal Communications Congress? [11-8-14]

Part 72:  NetCompetition on President’s Call for Title II Utility Regulation [11-10-14]

Part 73:  Top Ten Adjectives to Describe FCC Title II Net Neutrality Regulation [11-11-14]

Part 74:  Top Ten Questions to Ask About Title II Utility Regulation of the Internet [11-20-14]

Part 75:  The Only Legitimate FCC Hybrid Net Neutrality Approach [12-1-14]

Part 76:  Who Pays for Net Neutrality? [12-3-14]

Part 77:  Top Ten Deficiencies in FCC’s Title II Record [12-8-14]

Part 78:  FCC Title II Internet Regulation “Believe it or Not!” [12-17-14]

Part 79:  FCC is Unnecessarily Undermining its Legitimacy [12-18-14]

Part 80:  Will FCC Grant Congress Legislative Deference? [1-2-15] 

Part 81: Internet Association Perfecting Crony Capitalism with its Title II Position [1-13-15]

Part 82: NetCompetition Statement on New FCC Net Neutrality Legislation [1-16-15]

Part 83: NetCompetition on FCC Publicly Sharing its Proposed Open Internet Order [1-23-15]

Part 84: The FCC’s De-Americanization of the Internet [1-25-15]

Part 85: Testing the FCC’s Net Neutrality Political Calculus [1-28-15]

Part 86: Net Neutrality Bait & Switch to Title II [2-3-15]

Part 87: Cleland on NPR KQED Forum Debating EFF Rep on FCC Title II [2-5-15]

Part 88: Google’s FCC Title II Privacy Liability Nightmare [2-6-15]

Part 89: FCC Internet Utility Regulation Is a Really Stupid Idea [2-9-15]

Part 90: The FCC Is Not Neutral [2-17-15]

Part 91: America’s Title II Protectionism Will Hurt Google & Silicon Valley in EU [2-19-15]

Part 92: The FCC’s Predictable Fiasco of Internet Utility Regulation [2-24-15]

Part 93: NetCompetition Statement on FCC Title II Internet Utility Regulation [2-26-15]

Part 94: Why FCC Will Lose in Court on Title II (80%) – A Legal House of Cards -- A White Paper [3-2-15]

Part 95: FCC Title II Protectionism Creates a U.S. Digital Single Market like EU’s [3-11-15]

Part 96: NetCompetition on FCC Title II Internet Order [3-12-15]

Part 97: FCC’s Title II Legal Case is Modern Version of “The Emperor Has No Clothes” [3-16-15]

Part 98: NetCompetition Hill Event: Unnecessary Collateral Damage from FCC’s Title II Internet [3-25-15]

Part 99: Unnecessary Collateral Damage from FCC Title II Internet Regulation [3-26-15]

Part 100: FCC Detours Innovation to Government Slow Lane [4-7-15]

Part 101: Nationalistic Net Neutrality Naiveté [4-10-15]

Part 102: FCC-ville's Kangaroo Court [4-22-15]

Part 103: ObamaNet vs EuroNet -- “Competing” Protectionist Industrial Policies [4-24-15]

Part 104: FCC’s New Do Not Track List Authority [4-27-15]

Part 105: Expect Court to Partially Stay FCC’s Title II Internet Reclassification [5-4-15]

Part 106: Why Court Very Likely Will Stay FCC’s Title II Reclassification [5-14-15]

Part 107: How FCC Hurt Its Title II Anti-Stay Case [5-27-15]

Part 108: Three Big FCC Title II Privacy Questions – My Multichannel News Op-ed [6-9-15]

Part 109: Will FCC Lock-in Net Neutrality Gains in Legislation or Risk All in Court & Ballot Box? [6-12-15]

Part 110: FCC’s “Gotcha” Game of ISP Regulation & Enforcement [6-15-15]

Part 111: FCC Changed “Can-do” Internet into “Can’t-do” Internet [6-23-15]

Part 112: The FCC has Lost Its Credibility Internationally [7-6-15]

Part 113: The FCC’s Title II Trifecta Gamble [7-13-15]

Part 114: The Market’s Ignoring Google’s Many New FCC Common Carrier Liabilities [7-29-15]

Part 115: Unlicensed Spectrum Needs No New FCC Regulation [8-3-15]

Part 116: America’s Upside Down Cyber-Priorities [8-17-15]

Part 117: The FCC Built its Net Neutrality House on Legal Sand [9-14-15]

Part 118: The FCC’s Reasonable Unreasonableness? – A Satire [9-18-15]

Part 119: Google’s Internet Association Hypocritically Begs Digital Protectionism [9-23-15]

Part 120: Court Preview: Activists Expose Net Neutrality’s Biggest Legal Problems [11-29-15]