Does SCOTUS EPA Case Impact Net Neutrality? Here’s Why I Say No.

For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case what we will spend a bunch of time arguing about how to apply to agencies generally. And for the tiniest of all possible subsets, meaning me and a handful of other telecom lawyers, it was about . . . net neutrality. Because just about everything in telecom still revolves around net neutrality. Srsly. If we were living in the Don’t Look Up universe and a giant asteroid were about to smash into the earth, I’d be getting questions about folks whether I thought the asteroid supported classifying broadband as Title II.

 

The other basic truism about these events is that they are rather like ink blots, where what you see depends a lot on what you already think. So those who hate Title II are convinced that this spells doom for any FCC reclassification efforts, whereas those on the pro-Title II side think this doesn’t really change anything. I’m as much a human being subject to this bias as anyone else. So I can only explain why I think W.VA. v. EPA hasn’t changed anything and let y’all decide if I’m right. It all depends on what the Court means by a “major question” that requires “clear proof” that Congress intended to vest the agency with the power to do the thing.

 

Annoyingly, the Supreme Court has not been particularly clear on this concept. The anti-Title II folks point to Kavanaugh’s dissent from the D.C. Circuit’s refusal to rehear USTA v. FCC (the case that upheld the FCC’s 2015 Title II/Net Neutrality Order, which rested in part of what Kavanaugh called “the major rule” doctrine (now officially called “major question” doctrine) and the fact that the Roberts decision in W.VA v. EPA cited the Kavanaugh dissent (although not for anything having to actually do with net neutrality.) On the other hand, as I explain below, the actual language describing the “major question doctrine” if you read the case runs against the description of the “major rules doctrine” as described by Kavanaugh in USTA. More importantly, the Court’s reliance on Gonzales v. Oregon – which cites the FCC’s authority over broadband in Brand X approvingly as an example of where Congressional delegation is “clear” – seems to me much more important than a passing citation to the Kavanaugh dissent.

 

Additionally, while we always knew where Kavanaugh would be if this ever reaches SCOTUS again, there is plenty of reason to believe he lacks 4 additional votes for his position. Notably, Thomas (and to some degree it seems Alito and Gorsuch) have all fallen in love with common carrier again. True, that is in the context of social media, but it would be a level of weirdness to find that judges by common law can determine Facebook is a common carrier but broadband providers can’t be common carriers without Congress expressly saying so. Also, Thomas actually wrote the Brand X opinion, which found that it was totally cool for the FCC to classify DSL as Title II even if cable broadband were classified as Title I, so it’s hard to see how this kind of agency discretion is compatible with “major question doctrine.”

 

I break all this down in detail below . . .

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Turning Off The Phone System? What Do You Mean We’re Turning Off The Phone System?

A few weeks ago I went to a fascinating gathering of a few dozen academics, policy wonks, and others from the U.S.  and elsewhere to talk about the end of the phone system. While by no means a unanimous consensus, a very solid majority considered the phone system obsolete and ready for the scrap heap. This will come as a surprise to those of you who called home on Mother’s Day or who thanked God for a call center number when your broadband connection went down. But in fact, most of you are probably not using a phone service but a “phone service,” so we are half-way to shutting down the actual phone system anyway.

 

For about a year now, folks in the nerdiest, geekiest, obscurest reaches of Policyland and Wonkdom have been talking about how to turn off the phone service and replace it with “phone service.” For those of you enjoying “phone service” from the likes of cable companies or cell phone providers, you may wonder why this matters. Sure, Grandma may finally need to replace that princess phone, but other than that, who cares? As is so often the case, however, these technical issues matter quite a bit in the real world – but you won’t notice until waaaay too late to make a difference. (Unless you keep abreast of these things by reading this blog.)

 

In the best case scenario, we shift over to an all digital network free from antiquated laws and policies that stifle innovation and needlessly increase cost to consumers. In the worst case scenario, your phone becomes an utterly unreliable overpriced service that doesn’t guarantee that you can communicate with someone on another phone network because the two networks are having a “peering dispute” and won’t exchange traffic. What actually happens is anyone’s guess at this point, but the recent effort to totally deregulate “phone service” in California gives us something of a preview.

 

More below . . . .

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A Bad Bit of Timing For RCN — Public Comment Opens On Merger Day After Blocking Goes Public.

Welcome back everyone to the new and improved Wetmachine.com! I beg everyone’s indulgence while I figure out our new interface.

Every now and then, the universe hands you some lousy timing. Case in point for RCN. Back in March, when RCN announced its pending acquisition by Yankee Group, no one gave it a second thought. It all looked very uncontroversial and part of the natural consolidation for the few survivors of the debacle we call “intermodal competition.” But in what RCN can only view as the worst possible timing, the FCC put the deal out for public comment right after several stories that RCN had settled a class action for blocking p2p applications in a manner reminiscent of Comcast. (RCN “vigorously denies all wrongdoing,” but it is unclear whether they deny blocking or whether they deny they did anything wrong by blocking.)

Why does this matter? Because RCN has just become the prime opportunity for the FCC to answer the question “What’s our authority after the Comcast/BitTorrent case?

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