This morning the DC Circuit heard oral argument in the facial challenge to the FCC’s net neutrality rulemaking (which, full disclosure, I worked on when I was at the FCC). The most extensive writeup I have seen about the oral argument is here (note that the author, Harold Feld, is a strong supporter of the regulations). Everyone went long, and the argument took two hours. As to the outcome, Judge Tatel is likely the key vote (Judge Silberman seems inclined to invalidate the entirety of the rulemaking, and the quieter Judge Rogers seems much more sympathetic to the FCC’s arguments than Tatel was). Tatel telegraphed his inclinations reasonably clearly — that the FCC’s prohibition on unreasonable discrimination is invalid because it treats broadband Internet access providers as common carriers, but the prohibition on blocking is permissible. What this would mean, as Judge Tatel summarized on a few occasions in the argument, is that Internet access providers (e.g., Verizon) could not charge edge providers (Google was often used as an example) for their use of Verizon’s regular broadband Internet service, but could demand payment for faster service. That is what the “no blocking” rule provides: an Internet access provider cannot charge websites for access to the provider’s customers as part of the provider’s standard service, but it can charge websites for access to its premium service. The prohibition on unreasonable discrimination would cast doubt on charging for premium service (the fear being that this will lead to a two-tier Web, with mediocre speeds for companies that don’t pay, or aren’t affiliated with, Internet access providers, and fast speeds for the favored edge companies). So, if the position Judge Tatel favored were to prevail, neither Verizon nor the FCC would be happy, but edge providers would know that they couldn’t be charged for standard treatment and Internet access providers would know that they could roll out expensive new forms of Internet access and find new revenue streams for them (by, e.g., preferring one sports website to another). Not the net neutrality that its proponents wanted, but not nothing, either.
Of particular interest to me was the discussion of Chevron deference and the First Amendment. As to Chevron, there was a muddled, relatively short, and generally unhelpful discussion as to whether this was Chevron step one (has Congress “directly spoken to the precise question at issue”?) or step two (if the agency survives step one, is the agency’s answer based on a permissible construction of the statute?). The promise of Chevron was clarity and predictability — the mushy pre-Chevron standards and sliding scales would be replaced by a clear two-step analysis. Lots of studies have indicated that Chevron in operation is much less clear and predictable than in theory. Today’s oral argument highlights how fundamental some of that uncertainty is. (I’m not even getting into the step zero question whether Chevron deference applies in the first place, on which there was also a muddled discussion at today’s argument.)
The First Amendment, meanwhile, was the dog that didn’t bark. Judge Silberman brought it up briefly with FCC General Counsel Sean Lev, but no other judge showed any interest and Silberman didn’t pursue it. More strikingly, Helgi Walker for Verizon ignored it. Perhaps in her initial argument she thought she would win on statutory grounds and saw no need to mention the Constitution, but after the FCC’s argument and Tatel’s repeated suggestion that at least some of the rules might survive she could have no such confidence (and she had a lengthy time for rebuttal). And the First Amendment offered another basis for invalidation all the regulations. I wrote an article contending, inter alia, that providing Internet access does not trigger First Amendment coverage under the prevailing Supreme Court jurisprudence, because no substantive editing is involved (which is the main reason why I think search engine results are covered by the First Amendment under the prevailing jurisprudence), so I think Verizon’s argument is unpersuasive and that Helgi was wise not to spend time on it. But I do think it was interesting that no one focused on the First Amendment argument.
Constitutional law, including First Amendment law, has a reputation among many law students for being infinitely malleable, and administrative law has a reputation for more rigor. In this oral argument, however, the First Amendment didn’t seem so malleable, but Chevron sure did.