Supreme Court nominee Brett Kavanaugh again defended at his confirmation hearing Thursday night his dissent in the U.S. Court of Appeal for the D.C. Circuit's 2017 en banc affirmation of the now-rescinded 2015 net neutrality rules in USTelecom v. FCC amid criticism from Sen. Amy Klobuchar, D-Minn. She also queried Kavanaugh on his USTelecom dissent during an earlier confirmation session. He faced questions about his views on Chevron deference by courts to agency expertise and on tech-based privacy issues (see 1809050061 and 1809060048). Kavanaugh “went beyond the bounds” of USTelecom and FCC arguments, finding the First Amendment “protects ISPs' right to exercise editorial discretion,” Klobuchar said. Kavanaugh believes the First Amendment argument “seemed on point” for his dissent because it was a major factor in the Supreme Court's 1994 Turner Broadcasting and was in amicus briefs supporting USTelecom. Turner's First Amendment approach “seemed to apply very closely” and has been successfully applied to cases “in other contexts,” Kavanaugh said. “I pointed out” in the dissent that “if a company has market power under Turner then the government does have the authority to regulate, but if a company doesn't have market power,” Turner says that authority doesn't exist. “There's First Amendment rights of individuals to use the internet and express their own views,” Klobuchar said. “You basically said that the companies have those First Amendment rights,” which runs counter to policymakers' view “that unless you have some rules of the road in place, it's going to make it very hard for individuals and small businesses” to maintain internet access, she said. Demand Progress used Kavanaugh's dissent and his Senate Judiciary Committee testimony on the ruling in a Thursday night fundraising email. “Kavanaugh tried to block net neutrality when he was on the D.C. Circuit Court, but he was overruled by the other judges,” Demand Progress said. “On the Supreme Court, he and the other four right-wing justices would have the final word.” If two of the three Senate Republicans who joined Senate Democrats in May to pass a Congressional Review Act resolution of disapproval aimed at restoring the 2015 rules (see 1805160064) “join every Democrat in voting no on Kavanaugh, his nomination is finished,” Demand Progress said.

Sonic Telecom customers are concerned about a USTelecom petition that seeks sweeping FCC regulatory relief for its large incumbent telco members. They fear their rates will rise and their service will be harmed if the FCC grants the forbearance petition to free the ILECs from wholesale duties to lease out their networks as discounted unbundled network elements. Local competitors such as Sonic, a northern California broadband and voice provider, can use UNEs to reach customers where their fiber-based offerings aren't available.

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.