Title I Litigation Risks Abound, Say Copps, Law Professors
The FCC faces a risky day in court if it adopts net neutrality rules without reclassifying broadband as a telecom service, as Chairman Julius Genachowski proposes, the commission’s senior member and communications law professors watching the order’s development but not privy to internal deliberations told us. Copps and some professors said Genachowski’s plan, made public Wednesday, to keep broadband under Title I of the Communications Act appears to pose more risk than does reclassification of being thrown out in an appeal that many industry and commission officials believe is inevitable. While not relying solely on ancillary authority (CD Dec 3 p1) may help the regulator’s prospects in any case before the U.S. Court of Appeals for the District of Columbia Circuit, it’s unclear whether that will be enough for the FCC to win any lawsuit, said law professors we asked. Commission officials have said reliance on both ancillary and direct authority may make for a stronger order.
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"The chances of it surviving a court challenge are much, much less under Title I than under Title II,” Copps said. “I think it’s more vulnerable legally. I think it’s less well founded on the statute.” He said he doesn’t get the arguments of those who say Title I is the better approach. “I just don’t see that at all,” Copps said. “It just strikes me that you are much better off going down the route of Title II. Yes, there will be a court case, but if you go down Title I,” an appeal “will tie up our whole ability to build up broadband infrastructure, which is such an urgent priority for the country,” he predicted.
"I am looking forward to discussions with all the stakeholders and with my colleagues to see how we can make this a credible network neutrality item, and at this point I cannot tell you if that is achievable or not,” Copps said. “My preference remains Title II,” he said: “That being said, we have an opportunity now in the next three weeks to have an exchange of opinion now that we have an item, to go meet with the parties who were party to putting it together, to meet with all stakeholders and to see if there is sufficient flexibility to improve” the item -- which Copps considers necessary.
Title II “gives them a far better shot in the D.C. Circuit,” said Professor Adam Candeub of Michigan State University, a former Media Bureau staffer. “That’s what seems strange to me in the FCC’s apparent decision. If they're worried about being sued by cable [or] DSL providers, then they rely on Title II.” Reclassification would increase both “the chance of being sued” and “the chance of winning,” he said. “And, as Julius doesn’t have to pay for his legal fees, simply avoiding litigation shouldn’t be the goal. Winning should.”
"They'd have to come up with something pretty good” for the FCC to prevail in the D.C. Circuit under Title I, said Professor Donna Gregg of Catholic University, who led the bureau for several years under Chairman Kevin Martin. “There are real questions about the commission’s jurisdiction to do the things it proposed,” she said. “It’s on shaky ground to begin with on the jurisdictional issue, and that will probably impact the outcome of any appeal.” Reclassification is “less risky” legally, “but I really don’t think it’s a good idea” from a policy viewpoint, Gregg said.
A leader of FCC review for the administration’s transition team in 2008 supports sticking with Title I. “There is certainly no guarantee of success before the D.C. Circuit, but I don’t see a good ancillary jurisdiction theory as substantially more risky than a Title II approach,” said Professor Kevin Werbach of the University of Pennsylvania’s Wharton business school, who has a law degree. “The legal risk is roughly comparable under Title II or ancillary authority,” he said. “There are good legal arguments why the FCC would win the case under Title II, but it’s not a slam dunk.” And there’s “a greater likelihood of litigation against reclassification,” Werbach said.
The commission could apply “a streamlined version of Title II,” as Genachowski earlier had sought, said Professor Rob Frieden of Penn State University. “It provides the direct statutory authority a reviewing court requires and before changed circumstances provided the basis for its abandonment, Title II required nondiscrimination, transparency and the other Internet freedoms. But the political impracticality of re-regulation and the Supreme Court’s Brand X decision affirming the FCC’s functional abandonment of Title II, by classifying cable modem Internet access as an information service, makes reliance on Title II a sure loser on appeal.”
Title I has the benefit of likely not drawing major ISPs behind an appeal (CD Dec 2 p1), several law professors said. “Maybe it’s slightly stronger, but that’s certainly going to draw the biggest attack from parties affected,” said Brad Bernthal of the University of Colorado. “So I don’t think there is any surefire route.” Frieden’s bottom line: “It looks like the commission loses either way, should some aggrieved party appeal.”