Author: ber

James Grimmelmann has a characteristically brilliant post summarizing the countervailing interpretations of the Communications Act in determining whether Internet service providers (ISPs) should be treated as highly regulated telecommunications services (that can be subject to “net neutrality” regulations) or minimally regulated information services (that can’t). He sums up the saga:

By my reckoning, the FCC has treated broadband Internet as an information service, then a telecommunications service, then an information service again, then a telecommunications service again, and is now poised to treat it as an information service for a third time. At various times, federal appellate courts have held that the Telecommunications Act can be read to treat broadband Internet as a telecommunications service, must be read to treat broadband Internet as an telecommunications service, can be read to treat broadband Internet as an information service, and must be read to treat broadband Internet as an information service.

I can’t (at least before coffee) argue with anything in James’ thorough account of the history (which I subject my telecom students to in full every year because I think it’s so important). But I do want to take up the rhetorical question on which James closes:

Is this any way to run an information superhighway?

My response: maybe so?

I don’t mean to read too much substance into James’ question, but it calls to mind Chief Justice John Roberts’ opinion in Loper Bright, in the portion specifically criticizing the Court’s holding in Brand X that underpins most of the history of interpretive uncertainty that James laments:

By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.

But the fog of uncertainty constrains behavior. And a dynamic that has long dominated conversations about internet regulation is countervailing fears that one of two of the corners of Jack Balkin’s “triangle” of speech—the government in one, speech platforms in the other—will behave badly, overreaching at the expense of internet users in the third corner. It’s “the FCC dominating internet governance is a straight path to authoritarian censorship” versus “the ISPs dominating internet governance is a straight path to turning the internet back into cable TV.”

As I’ve written, good internet law and policy are all about sailing the narrow strait between the “Scylla of . . . authoritarianism” and the “Charybdis of . . . Lochneri[sm].” And the interpretive pendulum at the heart of the net neutrality debate has largely constrained the FCC and ISPs from breaching Larry Solum and Minn Chung’s “layers principle” too severely in one direction or another.

Specifically, the FCC has scarcely ever tried to apply its most contestable legacy media rules for indecency and carriage to application-layer platforms. And while ISPs have at various points tried to push the envelope with various blocking and throttling incidents and zero-rating regimes, they’ve never approached the level of control over the Internet that AT&T had over the phone network.

Why not? Developing authoritarian regulations and profitable discrimination regimes alike require legal certainty in one direction or another. It’s hard to develop a durable government censorship regime or a durable business model for discriminating among applications and content when you know the legal foundation for doing so is a Presidential election cycle away from potentially crumbling—and that anything extreme you do will be used as evidence by the next administration to reverse the current status quo. To mix metaphors, the interpretive uncertainty of the Communications Act is a sort of Damoclean pendulum, always threatening to swing back to the other side.

Of course, what the Sixth Circuit’s recent decision spiking the Biden-era FCC’s net neutrality rules on Loper Bright grounds will do to the pendulum’s swing is unclear. On the one hand, Loper Bright’s repudiation of Chevron (and the major questions doctrine articulated in West Virginia v. EPA) don’t bode well for the pendulum’s continued swing.

But the Sixth Circuit’s decision, in my view, doesn’t yank the pendulum from the clock: rather than tersely concluding that the net neutrality rules are a violation of the MQD or doing the Loper Bright thing and coming up with a better interpretation than the FCC did, the Sixth Circuit concludes (contrary to the part of Brand X that Loper Bright didn’t complain about) that the statute has a ”plain meaning.” I don’t think Loper Bright plausibly overruled the Brand X holding that the Communications Act is ambiguous; it just suggested that it’s the courts’ job to issue the ultimate determination of what it means. The Sixth Circuit’s bland, cursory opinion doesn’t do this job with any authority or persuasiveness. (And even if the Sixth Circuit were correct that the Communications Act did have a plain meaning, there are strong arguments that it’s the opposite of what the Sixth Circuit concluded—see Justice Scalia’s much more compelling dissent in Brand X and the pre-Brand X 9th Circuit cases that James cites).

Incoming FCC Chair Brendan Carr is almost certainly not going to appeal the Sixth Circuit’s ruling. So unless Congress finally decides to weigh in, it’ll leave the pendulum on the ISPs’ side for at least the next four years and change—maybe long enough for ISPs to come up with creative ideas for misbehavior. But the Sixth Circuit’s opinion is non-authoritative and I don’t think it forecloses a Democratic administration from trying again in four years. So it’ll likely be awhile before the Supreme Court actually has to confront Brand X and explain what the Communications Act really means. And until then, the possibility of a swing back may still leave ISPs in the “fog of uncertainty” (complimentary).

After the maelstrom of Internet law news from the last week, the Supreme Court denied cert in Doe v. Snap, a brewing effort out of the Fifth Circuit to get the Court to revisit Section 230. Of note, there’s yet another dissent from Justice Clarence Thomas (now joined by Justice Neil Gorsuch) lamenting the Court’s refusal to take up 230 after the collapse of Gonzalez v. Google.

Continue reading “SCOTUS Passes on 230 Review in Doe v. Snap” →

Whew—after years of tortured litigation over the Texas and Florida legislatures’ efforts to impose carriage mandates on social media platforms, a wild circuit split between the Fifth and Eleventh Circuits, and the platforms’ efforts to force the Supreme Court to finally make a definitive ruling about how the First Amendment applies to the Internet, the Court has finally issued a ruling in NetChoice. And the answer is… we’re going to get another long round of litigation. So what happened?

Continue reading “NetChoice’s First Amendment Litigation Adventures Approved for a Second Season” →

Like the proverbial dog chasing the car, the Supreme Court issued an opinion in Loper Bright v. Raimondo (RIP, Relentless 🤘) that finally catches up with the conservative wing’s dream of dismantling the administrative state and bites down hard on the bumper by eliminating Chevron deference. Being able to line-item veto an agency under the major questions doctrine apparently wasn’t good enough. Instead, Chief Justice Roberts decided that the judiciary needs to review every single rulemaking de novo, which will inundate the judiciary with esoteric questions about every corner of the American regulatory state, with only the help of Skidmore deference if the egghead bureaucrats at the agency happen to say something really smart. Oof.

While a million gallons of ink will be spilled about the immense consequences for American society, there are some special consequences for telecom and the obscure wad of law-and-policy bubble gum holding together America’s Internet infrastructure. The Communications Act of 1934 includes some of the broadest and vaguest delegations to an agency—the Federal Communications Commission—in all of American government, sometimes spelled out in commands no more specific than doing whatever “the public convenience, interest, or necessity requires.” The FCC has many decades of regulations developed in reliance on Chevron and similar doctrines, and challenges are about to come out of the woodworks notwithstanding Loper Bright’s promise “not [to] call into question prior cases that relied on the Chevron framework.” A lot of telecom lawyers are about to bill enough hours to buy a beach house.

Continue reading “Loper Bright and the Impending Brand X / Net Neutrality Admin Law Demolition Derby Apocalypse” →

Update (Nov. 18, 2024): looks like the government declined to seek review of the DC Circuit’s decision, and the proceeding‘s now back at the DC (federal) District Court, where the challengers have filed for summary judgment.

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Back in October, I wrote up the U.S. District Court for the District of Columbia’s decision in Medical Imaging & Technology Alliance v. Library of Congress, which effectively would have excluded important copyright policy matters conducted by the Library of Congress from judicial review. The district court purported to immunize the exemptions promulgated by the Library and the U.S. Copyright Office from the anti-circumvention measures of 17 U.S.C. § 1201 against both Administrative Procedure Act and constitutional separation-of-powers challenges.

On June 7, the DC Circuit Court of Appeals issued a surprising ruling vacating the district court’s decision. Judge Rao and Judge Edwards, over a dissent from Judge Childs, ruled that the triennial review indeed was subject to the APA and remanded to the district court for review of the exemption grant. In this post, I’ll try and tease apart how we got here and where things go from here.

Continue reading “The Future of Copyright Rulemaking” →

Note: the information offered here, like everything else on this blog, is for general educational purposes only and you shouldn’t treat it or rely on it as legal advice!

Policy practitioners and lawyers who might have filed comments at other agencies that rely exclusively on the Federal Register and regulations.gov often get stymied when it comes to the Federal Communications Commission. The FCC uses its own proprietary filing and document management systems for managing rulemakings that can be a little inscrutable if you haven’t encountered them before, so here are a few quick tips I acquired over years of submitting FCC filings when I was active as a clinical professor. (Note that this discussion is specific to commenting on public rulemakings; the FCC has a whole raft of other databases and systems for various other things that I won’t cover here.)

Continue reading “A Quick and Dirty Guide to Researching FCC Dockets” →

Back in March, the U.S. District Court for the District of Columbia released a significant (and very bad) opinion, Medical Imaging & Technology Alliance v. Library of Congress, that may have significant implications for the crafting of U.S. copyright policy and oversight. If the court’s reasoning stands on appeal, it effectively provides Congress with a sneaky way of marshaling copyright policymaking through the Library of Congress that renders it effectively immune from judicial and executive oversight.

Continue reading “The Chameleonic Library of Congress” →

Just a quick note that I’m delighted to be joining the author team with Jerry Kang and Alan Butler for Edition 7.5 of Communications Law and Policy: Cases and Materials. This is the book I’ve always used to teach Telecom Law, it informs how I think about communications law problems, and even better: it’s now available for free under a CC-B-NC-ND license. I’m looking forward to being able to iterate on this in the coming years.

As the reaction to the Supreme Court’s adventure in First Amendment Lochnerism in 303 Creative v. Elenis begins to unfold, I want to make a brief intervention on the issue of stipulated facts. In my view, the majority strips the context of some very banal stipulations by the Colorado defendants, unfairly playing “gotcha” to transform the stipulations into legal concessions and conceal the breadth of its holding.

Continue reading “On Stipulations and Expressiveness” →

In the lead up to this week’s doubleheader episode of Supreme Court Internet Law Adventures in Gonzalez and Taamneh, there has been a ton of attention on the potential impacts of altering the contours of Section 230—both for good and for ill—on Internet platforms and users. But one thing that hasn’t been quite so obvious is the impact on the courts, and I think that was really in play during the oral arguments.

Section 230, enacted in 1996, has allowed the courts to accumulate more than a quarter century of interpretive debt. When it comes to the Internet law pattern of “(a) apply [existing law x] to [new user-generated content platform y] and (b) evaluate what the First Amendment has to say about it,” we have shockingly little case law. This is because Section 230 almost always obviates both questions and gives us an outcome in the platforms’ favor.

As a result, we have almost no idea how huge swaths of law—e.g., tort, contract, civil rights, state criminal law, etc.—might (or might not) be applied to user-generated content platforms as a threshold matter. We have almost no idea how the First Amendment might apply. This means that rugpulling Section 230, whatever your policy preferences, is going to create an enormous amount of work for courts.

(How much work is a hard empirical question. But we can look at 230’s exceptions for indicators—and the body of law for platform copyright liability, Section 512, has generated an enormous degree of attention and litigation over the past quarter century.)

Moreover, the work isn’t going to be simple. Because we haven’t had the benefit of evolving a common law over the course of the last quarter century, courts won’t have the benefit of applying law to the primitive Internet platforms of 1996. They’ll have to start from scratch with today’s hyper-complex, multinational, ubiquitous congomerates, the obscure denizens and startups of the Internet’s long tail, and everything in between.

I don’t like to make predictions about how Supreme Court cases will come out, and it’s always hard to surmise what, if anything, oral arguments mean for the ultimate outcome. But I did get a sense of awareness unfolding among the Supreme Court’s Justices this week of what the profound stakes of a broad alteration of Section 230’s contours might be—not just for the platform defendants in the cases—but for the judicial system that the Justices sit atop.