Marble statues of Hammurabi, Moses, Solon and Justinian adorn the marble wall of Courtroom 20 in the U.S. Court of Appeals for the D.C. Circuit, where arguments on the 2105 FCC Open Internet Order were heard last Friday. To clarify, I did not take this picture – the use of recording devices, cameras and other electronics is prohibited in the courtroom.
The first lesson I learned last Friday is that you can never arrive too early for a good argument. I entered the U.S. Court of Appeals for the D.C. Circuit about an hour and a quarter before arguments on the FCC’s 2015 Open Internet Order were scheduled to begin, and by the time I made it through security and up to the sixth floor, I was about the 70th person waiting to get into the courtroom. Among those in line were a D.C. phenomenon – “line holders,” or “line sitters,” people who are paid a fee to hold a place in a line for others. About 15 minutes before “post time,” a court officer announced that line sitters would be required to vacate their spaces as soon as he began letting spectators into the courtroom. At that point, the free market began to emerge with people asking the line holder coordinator (whose business card reads a vague and amorphous “consultant”) whether they could effectively fly stand-by purchasing rights to unclaimed spots (e.g., those whose “ticket holders” had not yet arrived).
US Telecom came out swinging the statutes, arguing that the Telecommunications Act of 1996 established clear distinctions between telecommunications and information services that the FCC could not override. The judicial panel replied by brandishing NCTA v. Brand X. This initial exchange set the tone for the rest of the morning. The judicial panel – Judges Sri Srinivasan and David Tatel and Senior Judge Stephen F. Williams – were overwhelmingly prepared. Srinivassan is relatively young, and it was evident as he began asking questions why he occupies a seat on the bench; Tatel looks younger than his 73 years, and at times was relentless in his questioning; Williams, 79, looks like a judge, and could easily have taken a position among the marble statues of Hammurabi, Moses, Solon and Justinian that jutted from the wall above his head.
While US Telecom emphasized the statutory distinctions between telecommunications and information services, the Court responded by asking whether Brand X had created a “blank slate.” Srinivasan drilled counsel on whether telecommunications management functions from “[b]ack in the days in phones” could be compared to caching, which could undermine arguments that certain ISP functions necessarily categorize broadband Internet access service (BIAS) as an information service. The petitioners held firmly that “visit and retrieval” is not simple transmission, and unlike capabilities used to support an ordinary telephone call, are not the legal equivalent of telecommunications management. The petitioners observed wryly that the FCC actions could be compared to the Cheshire cat – the legal basis was removed, but the smile of regulation remains.
When FCC counsel took the podium for its turn, Tatel pressed the agency to describe changed circumstances that would have justified the shift in course from the Section 706-based regime articulated in the 2010 Open Internet Order to Title II in 2015. FCC counsel explained that it had “learned from the record,” and Tatel pushed back, asking for specific guidance on what had changed. After some additional parry and riposte, Tatel asked FCC counsel, “What is the crispest answer?” Williams also spent several minutes asking the FCC whether circumstances had changed in the past five years since the last round of FCC net neutrality rules (certain of which were overturned in Verizon v. FCC), and, invoking refrigerated railroad cars as an example of reasonable discrimination, probed prohibitions on paid prioritization. Williams pressed the FCC to explain why a flat ban was the proper approach when three former FCC economists had proposed that “much simpler, discrete, less damaging” constructs could have been implemented.
CTIA argued against the FCC’s inclusion of mobile services in the new regulations, and reserved special criticism for what it characterized as a failure of the FCC to provide adequate notice that the new rules might be imposed. The trade association argued that the FCC’s citation to a statute in the Notice of Proposed Rulemaking was insufficient for parties to contemplate and then comment on the “panoply of outcomes.” FCC counsel acknowledged that the notice was brief, but maintained that it was complete, stating that the Administrative Procedure Act (APA) does not require the FCC to “walk the parties by the nose through these issues.” CTIA disagreed, stating “we would have had to be psychics” to have envisioned what the FCC might do, arguing that it is not enough for the agency to “cite the statute” and then have parties “imagine” what outcomes might occur. Aside from the notice issues, CTIA also argued that there is a difference between PLMR and CMRS, and that the Communications Act references to “the” PSTN indicates that it is a single network; counsel explained the FCC action as inconsistent as “the country whose capital is either London or Paris.” CTIA also took exception to the FCC’s invocation of the functional equivalence test, arguing that is an anti-trust test that is unsuited to concluding that widespread use of mobile broadband justifies its regulation. Responding to the FCC’s counter-arguments that mobile broadband is ubiquitous, CTIA counsel exclaimed, “Milk is ubiquitous.”
First Amendment issues rounded out the morning; these were briefer and less spirited than the discussions that preceded them.
Overall impressions: The judicial panel was as prepared and engaged as anyone might expect, imagine or hope for. The judges’ respective and collective mastery of the record and relevant case law challenged petitioners and the FCC to define, describe and defend their positions. It is difficult, if not impossible, to handicap appellate decisions. But, the depth of the judicial panel’s questions and engagement indicates that the decision will be an intricate and substantive work that will settle both immediate and future questions.
And, one final impression on decorum in the courthouse: With the exception of the line sitters, there was not a man or woman on the floor who was not dressed for business – the notion of “business casual” does not apply, even for spectators; every man was in coat and tie. Court officers enforced prohibitions on electronic device usage and even newspapers strictly, and informed those in the overflow room that the same rules of conduct from the courtroom applied where only flat-screen closed-circuit monitors were playing. In one memorable exchange, counsel for one of the petitioners appeared to take too casual a tone with the bench. Inwardly, I thought, “This cannot last too long,” and within several minutes Tatel subtly but quite effectively reminded the attorney in whose house the case was being argued. I owe a thanks to the court officer who found a seat for me in the main courtroom for the second half of the arguments.
