So, I suppose you’re wondering, how did oral argument went. Since we have less than an hour before Shabbos, I will give you all my short version. You can download the recording from the D.C. Circuit here: Part I (wireline), Part II (wireless, First Amendment, Forbearance).
As always, the usual disclaimers apply. It is always perilous to try to guess from oral argument how things are going to go. Judges may ask a lot of questions to explore options, or they may let one judge pursue a line of inquiry while hanging back. And there’s lots of issues that never get discussed that are part of the appeal and will get decided based on the written record. Or the judges may be leaning one way, but when they start drafting and hasj things out further they change their mind.
Taking all that into account, here are my impressions based on sitting in the front row listening and watching the judges and attending to all the nuances, as filtered to my obvious bias in wanting to see the FCC affirmed.
More below . . . .
Here are my big takeaways.
The FCC looks very likely to win on the big question of statutory authority. None of the judges, even Judge Williams (the most conservative judge), seemed sympathetic to USTA’s effort to distinguish this case from Brand X. This is important because Brand X says that the definition of “Telecommunications” is ambiguous and the FCC therefore has discretion as to whether to define broadband as Title II telecommunications service or a Title I information service. By contrast, none of the panel pressed the FCC on why they thought it was ambiguous.
Similarly, the court didn’t seem particularly sympathetic to the attack on the general conduct rule. Judge Williams pursued a long line of questioning with regard to the no paid prioritization rule, but neither of the other Judges seemed particularly interested in this line of questioning. So my gut is that the bright line rules and the general conduct rule are safe.
By contrast, the FCC was pushed fairly hard on its rationale for including interconnection when it had decided not to classify the service identified in the Verizon case (the one between edge providers and the broadband access provider). At the same time, both Judge Tatel and Judge Srinivasan seemed open to the FCC’s response that the rule as adopted looks to whether the BIAS common carrier is behaving reasonably to fulfill its promise to the subscriber that it will deliver to the subscriber “all, or substantially all” content available on the Internet. So I still give the FCC a reasonable chance on being sustained on this as well.
Wireless More Murky, But FCC Win Still More Likely Than Not.
All the judges pressed both sides fairly hard on the wireless issues. On the one hand, the judges were clearly bother by creating a significant asymmetry in the law and creating a potential conflict between the definition of “telecommunications service” in Section 153(53) and the treatment of what would otherwise be a Title II telecom service as an information service (or, more accurately, a private mobile radio service). Judge Srinivasan asked the lawyer for CTIA “so if I’m walking in my house with an iPad. At one end of the hall I connect to my Wi-Fi, at the other end, my device switches over to my wireless subscription. Did Congress really intend these two services to be regulated totally differently even if I can’t tell the difference?”
At the same time, the judges also struggled with the FCC’s reasoning. Judge Tatel pressed the FCC on whether this created 2 “public switched networks” as opposed to one (the statute speaks of “the” PSN). Other judges raised questions about whether broadband and mobile telephone were really “functionally equivalent,” or whether telephones that used only traditional phone numbers and did not also have the capacity to handle IP addresses could now still be interconnected.
Bottom line, I think it’s more likely than not the FCC gets affirmed on wireless as well as wireline. But this one is a much closer call.
Nobody Was Interested In The First Amendment Arguments.
The judges all pretty much reacted the same way. “If we decide the FCC is right on common carriage, how can there be a First Amendment issue. A First Amendment issue can only arise if the provider is actually exercising some sort of editorial discretion, like in cable.” The lawyer for Alamo argued that it was the rules imposing common carriage that prevented carriers from editing content. But the judges (and the FCC) pointed out that a carrier that explicitly wants to offer a “curated” service — e.g., a family friendly ISP that filtered indecent content — would not meet the definition of a BIAS. The whole point about BIAS is that the provider holds itself out as offering you access to all, or substantially all, Internet content, so the problem doesn’t come up.
And as the Sun sinks slowly into the west, I must scurry off for Sabbath! Hopefully, this will hold y’all ’til Monday.
Stay tuned . . .