WASHINGTON — The National Cable & Telecommunications Association’s high-profile legal team laid into the Federal Communications Commission last week as they outlined their strategy for challenging the agency’s decision to reclassify Internet access as a common-carrier service under Title II.
Unless the U.S. Court of Appeals stays the reclassification decision, as the NCTA and others have sought, the rules go into effect June 12. And in any event, the underlying case must be made over the next few months in briefs and oral argument.
Ted Olson and Miguel Estrada, partners in the law firm Gibson Dunn who teamed up to help win George W. Bush the White House in Bush v. Gore, have paired to help cable win back the information service status the attorneys will argue was changed by a divided FCC without due explanation or notice, in violation of the law.
Olson said that by reclassifying broadband into a telecommunications service, the FCC defied the express intent of Congress that broadband not be “fettered by federal or state laws.” He also said the agency had violated the Administrative Procedures Act in various ways, including a rulemaking that mislead everyone and a final decision that did not allow for sufficient public input.
In a briefing with reporters last week, with NCTA president and CEO Michael Powell taking the third chair, Olson and Estrada looked to soften up their opponent with some shots to the legal solar plexus, with Olson saying the reclassification was the smothering and suffocating heavy hand of government.
Estrada argued that while the FCC had said it would follow the court’s blueprint for new rules — after the old ones were remanded — the FCC came up with “an entirely different outcome that could not have been anticipated in the rulemaking.” He said that outcome was tantamount to the FCC “legislating” a new Title II for the 21st century.
“We’re pretty sure that will not be an outcome that will be palatable to the courts,” Estrada said.
The legal duo also said the Title II case was one of the most important challenges to regulatory authority in recent memory, if not ever.
Powell said the NCTA still favors a legislative solution (one actually produced by the legislature) and even signaled that he remained somewhat optimistic after meeting with Hill Democrats last week. That solution would be to legislate the FCC’s bright-line rules against blocking, throttling and paid prioritization.
In the absence of legislation, the rules will be the subject of lengthy legal action. Estrada suggested the best-case timeline for a circuit decision would be oral argument by December or January of 2016, and a decision three months later. After that comes the likelihood of seeking Supreme Court review of that decision.
