Blumenthal to Grill High Court Nominee Kavanaugh on Net Neutrality Views
Sen. Richard Blumenthal, D-Conn., said Tuesday he plans to ask Supreme Court nominee Brett Kavanaugh about his dissent in the D.C. Circuit's 2017 en banc affirmation of the FCC's 2015 net neutrality rules in USTelecom v. FCC, No. 15-1063, during his confirmation hearing (see 1705010038). Blumenthal is one of five Commerce Committee members who also sit on the Judiciary Committee, which will begin hearings on Kavanaugh Sept. 4. Three other lawmakers -- Sens. Ed Markey, D-Mass., Ron Wyden, D-Ore., and Rep. Anna Eshoo, D-Calif. -- also said during a conference call with Blumenthal and reporters they oppose Senate confirmation of Kavanaugh because of his views on net neutrality.
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The four lawmakers and 101 other Capitol Hill Democrats also filed an amicus brief supporting a legal challenge in the D.C. Circuit to overturn the FCC order repealing 2015 net neutrality rules. Other advocates also supported reversing the FCC's decision (see 1808270040).
Blumenthal plans to ask Kavanaugh “tough questions” on his net neutrality views, including asking the nominee to “justify his dissent” in the D.C. Circuit's USTelecom affirmation. That dissent “clearly indicates that [Kavanaugh] would in effect allow the cable companies complete and unrestrained leeway in their power over what consumers see and hear” online, Blumenthal said: The nominee, if confirmed, “would cripple net neutrality not just this year, not just this FCC, but for decades to come.” A day earlier, 24 groups that support the 2015 rules urged senators to vote against Kavanaugh because of his net neutrality views (see 1808270031).
“The fate of the internet will end up in the Supreme Court” because of the ongoing legal challenges to the FCC's net neutrality actions, and if Kavanaugh sits on the high court, “he will kill net neutrality rules forever,” Markey said: The judge “believes that the fake First Amendment rights of big companies are more important than the real First Amendment rights of consumers and innovators.” Kavanaugh's record on net neutrality “shows that he would be willing to give cable companies an unlimited power to decide what the consumer is going to see” online, Markey said. “Any limit to this power … is somehow a violation of First Amendment rights,” Wyden said.
Kavanaugh's views on net neutrality could be a way of drawing some moderate Senate Republicans into opposition to the nominee, Markey said. Three Senate Republicans -- Susan Collins of Maine, John Kennedy of Louisiana and Lisa Murkowski of Alaska -- voted for Markey's Congressional Review Act resolution of disapproval aimed at undoing the FCC rescission order (see 1805160043).
Eshoo said Democrats were justified in filing an amicus brief supporting the challenge to the rule rollback in part because of Verizon's throttling of service to Santa Clara County, California, firefighters in the midst of the Mendocino Complex Fire, the largest fire in state history (see 1808220059 and 1808240039). Without “clear, enforceable rules of the road for internet providers, we're going to continue to see more anti-consumer or dangerous practices,” Eshoo said.
The deregulation “is based entirely in the misuse of language,” Democratic lawmakers said in the brief. “It is divorced from the practical realities that supported the FCC’s 2015 [Communications Act Title II] classification decision. And it leads immediately to absurd results. It is an abuse of discretion which this Court should overturn.”