The hold Sen. Dan Sullivan, R-Alaska, placed on FCC Commissioner Brendan Carr’s reconfirmation is a temporary roadblock that will further delay securing Carr for a full five-year term ending in 2023 and unlikely to completely derail a vote this year, lawmakers and lobbyists said in interviews. Sullivan told us Wednesday night he placed the hold on Carr because of his continued concerns about FCC handling of the USF Rural Health Care (RHC) Program under Chairman Ajit Pai (see 1809120056). Confirmation of Carr and FCC nominee Geoffrey Starks has stalled repeatedly since Senate Commerce Committee Chairman John Thune, R-S.D., first tried to fast-track the two in June (see 1808230040).
Senate confirmation of Democratic FCC nominee Geoffrey Starks and Commissioner Brendan Carr for a full five-year term ending in 2023 under unanimous consent will be difficult before the November election, lawmakers and industry officials told us. The FCC would in that scenario remain a 3-1 Republican majority until Congress’ lame duck session at the earliest, with Commissioner Jessica Rosenworcel the lone Democrat. It’s unlikely Starks as a successor to former Commissioner Mignon Clyburn would substantially affect upcoming proceedings, but the absence of a second FCC Democrat means the loss of an additional opposition voice, industry officials said.
Sen. Dan Sullivan, R-Alaska, placed a hold on FCC Commissioner Brendan Carr’s reconfirmation for a full five-year term ending in 2023 over the senator’s continued concerns about the agency’s handling of the USF Rural Health Care Program under Chairman Ajit Pai. Confirmation of Carr and FCC nominee Geoffrey Starks has been stalled repeatedly in recent months. Senate Commerce Committee Chairman John Thune, R-S.D., and others point to larger political factors as the major hurdle.
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Thursday night his dissent in the U.S. Court of Appeal for the D.C. Circuit's 2017 en banc affirmation of the now-rescinded 2015 net neutrality rules in USTelecom v. FCC amid criticism from Sen.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.
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).
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.
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.
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.
A wireless infrastructure order set for a vote at the FCC's Sept. 26 commissioners' meeting takes a “balanced approach” by allowing local governments to retain some autonomy over their reviews of small-cell deployments in rights of way while also streamlining the process, Commissioner Brendan Carr said Tuesday in a speech at the Indiana State House. NATOA officials raised concerns about the coming action during their meeting last week, we previously reported.
The House and Senate Commerce committees are aiming to continue working on telecom and media issues in September, lawmakers and lobbyists said in interviews. Senate Commerce leaders plan additional work to create a spectrum and 5G-related legislative package as the committee’s top telecom priority. House Commerce is eyeing a September media marketplace hearing with a likely focus on the Next Generation Television Marketplace Act (HR-6465). Lobbyists and communications sector observers cautioned that Capitol Hill’s rapidly closing legislative window means there's only a limited chance new telecom bills will advance before November elections and the subsequent lame-duck session.