Regulatory classification

In Sept, the Federal Trade Commission (FTC) will kick off its planned Hearings on Competition and Consumer Protection in the 21st Century.  The timing is auspicious.  Now that the FTC once again oversees the entire internet ecosystem, including broadband internet service providers (ISPs), it should pursue two overarching objectives.

An exacting look at Judge Brett Kavanaugh's judicial record is crucial to understand where he stands on issues of critical importance to the American people. In one such case, United States Telecom Association. v. FCC, the DC Circuit Court of Appeals was called upon to review the constitutionality of the Federal Communications Commission’s net neutrality regulations from 2015.

After months of relative inactivity, there will soon be some important movement in litigation over the Federal Communications Commission’s network neutrality rules. The fact that there are two different cases in two different courts litigating over two different decisions is likely to cause considerable confusion in the coming weeks. On Monday, August 20, challengers will be filing their initial briefs in their appeal of the Trump Administration FCC’s oxymoronic “Restoring Internet Freedom” order.

While unlikely to draw the level of attention given to abortion rights, the Affordable Care Act, and affirmative action, the status of the “Chevron doctrine” is, to many, a crucial consideration for and against the confirmation of Judge Brett Kavanaugh’s nomination to the Supreme Court. The Chevron doctrine gives regulatory agencies substantial discretion to decide what they can do under the laws that define their authority. Perhaps the most relevant Supreme Court Chevron-related opinion these days is National Cable Television Association v. Brand X, decided in 2005.

The Federal Communications Commission has already repealed net neutrality, but the Trump administration can't leave it there. It also wants the Supreme Court to remove a ruling that upheld the controversial Obama-era rules. Is this a big deal? It depends on who you ask. While the request is somewhat unusual, not many cases upholding government regulation are followed by a repeal of that regulation, some legal experts say remanding the decision is just a bit of legal housecleaning. But net neutrality supporters disagree.

Charles "Chip" Pickering, a conservative Republican former member of Congress and CEO of a telecommunications-industry group called Incompas, supports net neutrality. Under Pickering's leadership, Incompas has been a steadfast defender of 2015 rules adopted by the Federal Communications Commission that ban broadband providers like Comcast and Verizon from blocking or discriminating against lawful content. That’s placed it at odds with other industry groups working to undermine efforts to mandate net neutrality.Incompas  itself is something of a paradox.

The Department of Justice and the Federal Communications Commission requested that the Supreme Court vacate a 2016 appeals court decision upholding net neutrality rules adopted by the FCC in 2015. If the court decides to grant the motion, the previous decision to support the rules would be removed, clearing the path for re-litigation in the future when it comes to classifying broadband. If the DOJ and FCC’s request is approved by the court, the previous rules, spearheaded by then-FCC Chairman Tom Wheeler, would be voided from the judicial record.

Rep. John Curtis (R-UT) hosted an invite-only roundtable discussion, hoping to gather stakeholder input on how to best address efforts to maintain an appropriately open internet system. "We tried to get every position represented in the room," said Rep. Curtis. "We had (internet service providers), edge providers and both large and small tech businesses.

The DC Circuit Court of Appeals has set briefing deadlines in the challenge to the Federal Communications Commission’s net neutrality repeal. Mozilla, state attorneys general and other groups fighting the FCC’s rollback will file their arguments Aug. 20. The Internet Association, Computer & Communications Industry Association and other organizations bolstering their case will file Aug. 27. The FCC has to respond Oct. 11, and the telecom associations backing the agency, including CTIA and USTelecom, will file their briefs Oct. 18. Final briefs in the case are due Nov. 27.

Voters across four key battleground Congressional districts (CA-25, CO-06, FL-18, NY-19) overwhelmingly support net neutrality and want their member of Congress to force a vote to overturn the FCC and restore net neutrality protections. Support for net neutrality is broad and bipartisan, and moves independents and undecided voters toward a member of Congress willing to take immediate action. Furthermore, a majority of independents and undecideds in the battleground districts tested say net neutrality will be an important factor in determining their vote in the midterm election