Determining the right balance between national security and privacy rights will remain “an enormous issue” that the Supreme Court and lower courts will need to continue to grapple with over the next 10-20 years, high court nominee Brett Kavanaugh said during the Senate Judiciary Committee's Thursday confirmation hearing. Kavanaugh continued to discuss Chevron deference by courts to agency expertise and said he would maintain an open mind on calls to open the Supreme Court to live media coverage. Kavanaugh faced questions Wednesday on Chevron and his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1705010038 and 1809050061).

USTelecom's bid for incumbent telco wholesale relief faced further resistance from rivals and others in replies to the FCC due Wednesday, though more large ILECs filed support than initially (see 1808070024). New competitors, some state regulators and consumer advocates said the commission should dismiss or deny the petition. Now, they are joined by more than 8,000 individuals filing substantive opposition, according to Incompas. Our review of docket 18-141 appears to confirm that.

Supreme Court nominee Brett Kavanaugh attempted to parse his views on deference by courts to agency expertise under the Chevron decision, saying he's not totally opposed to the precedent, during the Senate Judiciary Committee's Wednesday confirmation hearing session. Kavanaugh's views on Chevron as a judge on the U.S. Court of Appeals for the D.C. Circuit mean many in the communications sector believe he would raise the bar for FCC regulations (see 1807100020). Kavanaugh defended his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC, as expected (see 1705010038 and 1808310045). Questions continued into the evening.

USTelecom, ITTA, NCTA and NTCA urged the conference committee reconciling House- and Senate-passed farm bills (see 1807160064) to adopt language from the Senate bill that would revamp elements of Rural Utilities Service (RUS) broadband funding programs (see 1806140067). That language would “better target broadband support to unserved areas and limit overbuilding, including overbuilding in places where broadband providers have accepted federal funds to support broadband connections, such as Universal Service/Connect America support aimed at promoting and sustaining broadband deployment in high-cost rural areas,” the groups said in a Tuesday letter. That would jibe with requirements Congress included in the FY 2018 omnibus spending bill that authorized the $600 million RUS-administered pilot Distance Learning, Telemedicine and Broadband Program (see 1803210041 and 1803230038), the groups said.

Sen. Chris Coons, D-Del., was the only Judiciary Committee member to cite Supreme Court nominee Brett Kavanaugh's dissent in the U.S. Court of Appeals for the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1705010038) during members' opening statements Tuesday at the nominee's confirmation hearing. Much of focus centered on Republicans and Democrats trading barbs over the amount of documentation provided to committee members on the nominee, with Democrats pushing for a delay to proceedings. Coons mentioned Kavanaugh's USTelecom dissent among a litany of cases from the nominee's D.C. Circuit record that Coons feels are a cause for concern. Sen. Richard Blumenthal, D-Conn., mentioned only general concerns about Kavanaugh's track record on consumer protection issues but is expected to grill the nominee on his USTelecom dissent during a later hearing session (see 1808310045). Kavanaugh's views on federal courts' Chevron deference by courts to agency expertise didn't come up during opening statements but are expected to be an issue of interest during questioning. Kavanaugh didn't refer to his USTelecom opinion in his opening statement, saying regarding his D.C. Circuit votes, “I am proud of that body of work, and I stand behind it.” A judge “must be independent and must interpret the law, not make the law,” he said.

California’s net neutrality bill is headed to the governor’s desk, as expected (see 1808310042), after the Senate voted 27-12 Friday to concur with Assembly amendments to SB-822. The dozen nays came from the GOP, though one Republican voted yes and one didn’t vote. Companion SB-460 to restrict state procurement with ISPs that don’t follow open-internet rules died in the Assembly 28-37. Democrats recorded all the yes votes, but 13 said no and 14 didn’t vote. There were 24 GOP no votes; one Republican didn’t vote. Former FCC Chairman Tom Wheeler cheered SB-822 passage in a tweet. In a livestreamed news conference, Sen. Scott Wiener (D) said he worked with Attorney General Xavier Becerra (D) to ensure his bill is defensible. The AG was “very conscious of the fact that we are going to get sued,” since ISPs said from beginning they would challenge such law, Wiener said. “When you're in government, you get sued.” USTelecom CEO Jonathan Spalter, who earlier threatened to challenge state open-internet efforts (see 1803260024), Friday evening urged Gov. Jerry Brown (D) to veto the bill and Congress to make national rules. A trade association or small ISP is likely to be the primary challenger, with the FCC likely to weigh in once the suit is filed, said American Legislative Exchange Council Communications and Technology Task Force Director Jonathon Hauenschild. Challengers may want to take on several different state laws at about the same time, and the California bill taking effect -- this January if Brown signs -- could be the “tipping point” for action, he emailed Tuesday. “This way, the courts hear both the similarities in the bills and the differences and render a more complete verdict.” SB-460 failing wasn’t a big deal, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon. “The problem had nothing to do with telecom policy and more with internal political issues within the Democratic caucus,” he emailed. “They made their mark with 822." Also Friday, a privacy bill passed (see 1809040053).

California lawmakers advancing net neutrality legislation sends a message to Washington that Americans want an open internet, supporters said after Thursday’s vote (see 1808300056). FCC Commissioner Mike O’Rielly condemned the action, which Commissioner Jessica Rosenworcel welcomed. National industry groups called for a federal law, saying state-specific rules threaten broadband investment. Lawsuits could come, said observers, although three other states earlier enacted net neutrality bills without legal challenge.

Senate Judiciary Committee members are certain to bring up Supreme Court nominee Brett Kavanaugh's views on the Chevron doctrine and net neutrality during his confirmation hearing, lawmakers and lobbyists told us. They cautioned those issues will compete for attention with higher-profile ones like limits of executive power, abortion and same-sex marriage, as happened during 2017 confirmation hearings for now-Justice Neil Gorsuch (see 1703200051 and 1703210065). Kavanaugh's hearing begins at 9:30 a.m. Tuesday in 216 Hart and continues through Thursday or Friday.

Telecom industry interests are supporting the FCC's proposal for extending the current jurisdictional separations freeze and allowing RLECs that chose to lock in their category relationships in 2001 a chance to opt out, in docket 80-286 comments. Commissioners unanimously approved the Further NPRM in July (see 1807180059). Monday was the comment deadline, with replies and state public utility commission initial comments due Sept. 10 (see 1808200025).

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.