Kavanaugh a Communications Law Lightning Rod, Targets Chevron, Backs Industry Speech Rights

Supreme Court prospect Brett Kavanaugh has made a mark in communications law in 12 years as a U.S. Court of Appeals for the D.C. Circuit judge. In a dissent from a ruling affirming the FCC's 2015 net neutrality order, he argued the regulation lacked clear congressional authorization and violated the First Amendment. The agency shouldn't get Chevron deference on "major" rules and broadband ISP speech rights can't be restricted absent a market power showing, he wrote. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders, giving him far more telecom and media legal experience than any other contender to replace retiring Justice Anthony Kennedy (see 1806280018).

Kavanaugh sparks polarized views in communications circles. "I think he would be a simply outstanding Justice," emailed Gus Hurwitz, University of Nebraska assistant law professor. "It seems likely to me that were he appointed to the Supreme Court we would begin to see a dramatic curtailment of Chevron and related doctrines of judicial deference." Hurwitz doubted "the Court would eliminate Chevron outright, no matter who is appointed to the Court" but expects to see the doctrine narrowed, "with increasing demands that courts more substantively review agency decisions in a range of circumstances (including, e.g., major questions, changes or interpretation, or jurisdictional matters)."

"Kavanaugh has been on the fringe of First Amendment jurisprudence," believing "that network operators like ISPs have First Amendment rights akin to those of individuals," emailed Gigi Sohn, fellow at the Benton Foundation and Georgetown Law Institute for Technology Law and Policy. "For 85 years, the First Amendment rights of network operators like ... broadcasters and cable operators have always been balanced with the rights of the public. Kavanaugh's ascension to the bench could start the mainstreaming of a legal theory that would all but eviscerate the public’s rights with regard to networks that use public rights of way and by law are required to serve the public. Also, without a doubt, Kavanaugh will be a Chevron skeptic, which is entirely consistent with the Trump Administration desire to destroy the administrative state."

President Donald Trump reportedly has interviewed six judges, and Kavanaugh is said to be on a short list with the 6th Circuit's Raymond Kethledge and 7th Circuit's Amy Coney Barrett, and the 3rd Circuit's Thomas Hardiman still a possibility. Kavanaugh has drawn some conservative opposition. He clerked for Kennedy and worked with Ken Starr in the Office of Independent Counsel in the 1990s. (He has run the Boston Marathon in 3:59:45, says his bio.) Trump plans to announce his choice Monday.

Chevron in Crosshairs

"Kavanaugh is clearly inclined to resist the expansion of administrative-agency authority, but he has tended to approach administrative law issues on a case-by-case basis, rather than by mounting a frontal attack on the doctrine of deference to agency interpretations of ambiguous statutes" in Chevron, wrote ScotusBlog's Edith Roberts. Yet Kavanaugh's dissent from the D.C. Circuit's en banc affirmation of the 2015 FCC Communications Act Title II net neutrality order in USTelecom (2017) suggests he's seeking to rein in "the administrative state" through a "major rules doctrine," she said.

On ordinary rules under ambiguous laws, the courts give deference to agency decisions if they're reasonable, Kavanaugh's dissent said. But in a series of rulings over 25 years, he wrote, the Supreme Court has required clear congressional authorization for major rules, defined as "decisions of vast economic and political significance" in Utility Air Regulatory Group v. EPA (2014). "If a statute only ambiguously supplies authority for the major rule, the rule is unlawful," he wrote. "Congress did not clearly authorize the net neutrality rule. ... The net neutrality rule is a major rule under any plausible conception of the major rule doctrine."

Kavanaugh's doctrine "goes even further than the 'major-questions doctrine' described by [Chief Justice] John Roberts in King v. Burwell" (2015), wrote ScotusBlog's Roberts, noting a court reversal of Affordable Care Act subsidies. "To Kavanaugh, if Congress has not spoken on a matter of deep economic and political significance, which it had not in this instance, a regulation challenged under the relevant statute is presumed to be invalid."

Regardless, the best reading of the law is that broadband is a Title I "information service," not a Title II telecom service, added Kavanaugh, who didn't refer to the 1996 Telecommunications Act by name, calling it an amendment to the 1934 Communications Act, which it was. The current FCC's net neutrality rollback order reclassifying broadband under Title I is being challenged in the D.C. Circuit.

Kethledge also objects to broad court deference to agencies, decrying Chevron as abdication of court authority, blogged Ryan Snider, who clerked for the judge, and Charles Cooper. The 6th Circuit granted some locality challenges to FCC cable franchising rules, with Kethledge writing the 3-0 opinion in 2017's Montgomery County, Maryland (see 1707120039). We're not aware of communications rulings by Barrett, who joined the 7th Circuit Nov. 2. ScotusBlog profiles here.

Industry Speech Rights

Kavanaugh said the 2015 net neutrality order also violated ISP speech rights. "The First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an [ISP] possesses market power in a relevant geographic market," he wrote. "Here, however, the FCC has not even tried to make a market power showing."

Kavanaugh has conducted "a one-man crusade" against the 1992 Cable Act, said Andrew Schwartzman, Georgetown Law’s Institute for Public Representation senior counsel, speaking in December 2013. Key cable regulations rested on a "hollowed-out foundation," Kavanaugh concurred in Agape Church, arguing a dual-carriage "viewability" rule and the broadcast "must-carry" regime violated the First Amendment (see 1312300032). "When the cable operators’ monopoly collapsed, the constitutional foundation supporting the ... Act’s program carriage and non-discrimination regimes collapsed with it. ... [T]he Government can no more tell a cable operator today which video programming networks it must carry than it can tell a bookstore what books to sell or tell a newspaper what columnists to publish."

The judge opined that the FCC violated Comcast's speech rights by ordering it to carry the Tennis Channel. The cable operator "has only about a 24% market share in the national video programming distribution market," Kavanaugh concurred in a Comcast ruling overturning an agency order in May 2013 (see 1305290043). Cable's "bottleneck" power was undone by multichannel competition from Dish, DirecTV and, often, telco TV providers, he dissented on a 2010 Cablevision ruling upholding an FCC program-access order (see 1003150128). He also backed a Comcast 2009 ruling throwing out a 30 percent cable ownership cap as arbitrary and capricious (see 0908310118).

Numerous Rulings

Kavanaugh upheld FCC partial relief for AT&T and two midsize telcos, forbearing from applying dominant-carrier pricing regulation to their business special access services while maintaining common-carrier oversight. "Applying the deferential arbitrary and capricious standard, we find the FCC’s decision to recalibrate the degree of regulation imposed on the ILECs’ special access lines to be reasonable and reasonably explained," he wrote in a 2009 Ad Hoc Telecom Users Committee 3-0 ruling (see 0907200168). He also backed a 2007 ruling in Qwest upholding FCC forbearance easing Qwest's unbundling discount duties in some Omaha wire centers, challenged by both the ILEC and CLECs (see 0703260101).

The D.C. Circuit affirmed FCC limits on CLEC fees in traffic-pumping schemes, with Kavanaugh writing the 3-0 opinion in 2013's Northern Valley Communications (see 1306100059). He also wrote unanimous opinions upholding a local number-portability order in an NTCA 2009 ruling (see 0904290141) and deferring to an FCC decision accepting state refusals to order AT&T and Verizon to give refunds to payphone providers for excessive charges in an Illinois Public Telecom Association 2014 ruling (see 1406160029). He joined a 2016 stay (in Pacer) of FCC intrastate inmate calling service rate caps in Global Tel*Link that were later overturned. He backed a 2006 Nuvio ruling upholding a VoIP E-911 120-day deadline, saying he agreed with an FCC suggestion it would have been justified even if providers couldn't meet the deadline. The agency has the authority to reasonably "address the public safety threat by banning providers from selling voice services until [they] can ensure adequate 911 connections," he concurred (see 0612180129).

Kavanaugh upheld an FCC order declining to impose multilingual duties on broadcaster emergency alerts in a 2017 Multicultural Media, Telecom and Internet Council majority opinion (see 1710170036). Also welcomed by broadcasters, he backed a 2012 reversal in PMCM TV of an FCC denial of a cross-country license change (see 1212170043). He dissented from an American Bird Conservancy 2008 ruling that vacated an FCC order for failing to fully review the environmental impact of Gulf Coast communications towers before granting licenses; he said the challenge was unripe because the FCC was re-examining the issues nationally (see 0802200126). He partially dissented from an American Radio Relay League 2008 ruling that remanded a broadband over powerline order for failing to fully disclose studies it used; he said the agency adequately explained its reasoning (see 0804280127).

He ruled against an FCC order that required businesses to include opt-out notices on solicited faxes, with his majority opinion in Bais Yaakov (2017) saying the agency lacked authority under the Junk Fax Prevention Act and noting, "Believe it or not, the fax machine is not yet extinct" (see 1703310018). Copyright Royalty Board appointments not nominated by the president and confirmed by the Senate raise a "serious constitutional issue" under the Appointments Clause, he concurred in 2009's SoundExchange. He has also sided with Verizon (here), AT&T (here) and CNN (here) in National Labor Relations Board cases (see 1606210056, 1507100023) and 1708040050).