How U.S. Courts Are Reshaping Broadband Access - Episode 623 of the Community Broadband Bits Podcast

Andy Schwartzman (00:07):
Congress is so split and what they tend to do is that when they can't agree on something they hunt.

Christopher Mitchell (00:14):
Welcome to another episode of the Community Broadband Bits podcast. I'm Christopher Mitchell at the Institute for Local Self-Reliance. I'm in St. Paul, Minnesota today and I'm excited to be talking with Andy Schwartzman, who is Senior [00:00:30] Counselor at the Benton Institute for Broadband & Society. Welcome to the show, Andy.

Andy Schwartzman (00:36):
Hi Chris. Welcome to my world.

Christopher Mitchell (00:39):
I'm excited to get into it. This is a world that is I think very exciting. There's always something going on and you've been around a very long time running it. I'm not going to, sometimes when I've Heather Gold on I'll sometimes we'll tease her about her age, but I won't point out that [00:01:00] the Media Access Project started in 1978

Andy Schwartzman (01:03):
And actually the Media Access Project started in 1973, but I only got there in 1978.

Christopher Mitchell (01:09):
Oh, okay.

Andy Schwartzman (01:10):
But either way what it boils down to is I'm old and I've been doing this a long time actually, I first got into communications work in 1971 right out of law school working for the United Church of Christ, office of Communication, doing broadcast [00:01:30] license renewal stuff. So I have been doing this a long time. I had a brief sojourn in the government and when the person who was running Media Access Project was leaving, they recruited me to take over in 1978 and I did do that until 2012, which is a long run. The thing, accomplishments and the work we did I think are worthwhile, but in some ways my greatest accomplishment [00:02:00] is some of the people that I worked with who I think I try to help mentor Gigi Sohn who I know has been on the podcast before. Cheryl Leanza, who currently does work for a leadership conference, civil and Human Rights, and for the current version of the United Church of Christ, which is their media justice ministry. David Danner worked as an attorney There is now the chair of the Washington State, [00:02:30] PUCI create the exact name of it.

(02:33):
I got a lot of alumni who've done important work, but mostly, as the name suggested, most of the attention in the early years was really on media first broadcasting and then cable as it went on. But as the technologies converged, it verged, it veered more and more into broadband and with the broadcast deregulation, it became less viable to do a whole lot in that area. We did do a whole lot of work on cable in [00:03:00] the eighties and nineties and trying to defend the 1992 Cable Act and some of the things in there, but that was really a precursor to the increasing focus as we all did on what became the Internet and broadband, which is we devoted ever increasing amounts of our work there. And one other colleague I didn't mention, Harold Feld was working with less than that period and Harold really did a lot of our important broadband [00:03:30] work. We were some degree originally set up as a general counsel's office for public interest groups who cared about some of these media and telecom issues but didn't have the legal capacity to do it. And over time as this all became more important, the organizations developed their own in-house capacity, which was great.

Christopher Mitchell (03:50):
With your coaching tree

Andy Schwartzman (03:52):
And Free Press, Gigi set up Public Knowledge. Other organizations all developed in-house capacity and [00:04:00] we decided at MAP our function was less necessary as groups were developing their in-house capacity. So we decided to shut it down while we were on top and functioning and generating revenue rather than sort of preside over a decline in the meat of us. And so we shut it down. I then went to work at Georgetown Law School, technically Georgetown University Law Center running, [00:04:30] not running, working at the Technology and Communications law clinic there under Angela Campbell, another colleague of mine,

(04:40):
And I did that for about five years until Angela retired and I didn't want to stay around and deal with her successor. Laura Moya is kind of, this is the way we always did big footer. So I left and went to work for Benton. I'd been doing a lot of work for Benton while I was at Georgetown at the clinic, [00:05:00] and Benton took me on as their senior counselor. Again, another polite way of saying old, and I've been doing that ever since. Benton, which had done a lot of media work like the Access Project had in the early years refocused and actually rebranded itself as the Benton Institute for Broadband and Society, and that's where the bulk of my work has been in recent times.

Christopher Mitchell (05:25):
The Title to look out for is pre emeritus. That's the one where you [00:05:30] know you're in trouble. The nature of communications work. I just want to ask you about this quick because I was reminded this morning that Benton's slogan or mission recognizes that communications is the bedrock of democracy of I think open society and when you're working on these issues from a consumer lens, sometimes it's a focus pricing and you can miss out on the importance of this. [00:06:00] So something you've dedicated your life to. I'm just curious if you can give us a sense of why you think communications, telecommunications is that important.

Andy Schwartzman (06:07):
At map we always try to frame the First Amendment as including as the name access exists, a right to speak and to be heard. The notion of access and being able to present your views is broader than just you can speak into an empty room and [00:06:30] whether it's through traditional media or media outlets that communicate by the Internet or not, the idea is that there is a bedrock democracy First Amendment component in all the work that we do. Promoting the availability and affordability of Internet access is ultimately the most important work we do is to enable [00:07:00] people to function as members of our society to engage in civic discourse. But relative to that, in order to function, you need ability to engage in commerce, you need ability to engage, to have medicine and telemedicine services. You need ability to interact with government and that's not just expressing views, which is very important, not just emails to your political elected officials and participating [00:07:30] in elections. It's also the governmental functions ability to get a building permit or a driver's license easily online inexpensively. All of those facilitate the democratic process in various ways.

Christopher Mitchell (07:48):
When I reached out to you, I was hoping to discuss some of the history and you reminded me of the things that are going on right now that you are currently in litigation over as senior counselor. [00:08:00] And so we decided to talk about those things. We're going to talk a little bit about Title II and the Fifth Circuit case that we hope the Supreme Court will hear about USF Universal Service Fund. But I wanted to start with the school bus Wi-Fi issue because I feel like a lot of people aren't tracking this. This is one of those things that I feel like insiders are working on. The Federal Communications Commission has tried to move through but hasn't gotten a lot of coverage because there's just not a lot of coverage [00:08:30] of these things in major media. So can you start with just getting us a sense of what's happening around this issue and then we'll talk more about what the position is that you've adopted?

Andy Schwartzman (08:40):
Well, if you don't mind, I'm going to back up a little before that and zoom out for a second. Do it. I don't think the general public has fully internalized comprehends the dramatic sudden change that is resulting from the [00:09:00] package of decisions that the Supreme Court has issued in the last two years affecting the relationship between the courts and the decision makers in the various agencies.

Christopher Mitchell (09:13):
A hundred percent I agree.

Andy Schwartzman (09:15):
It's not just the overruling Chevron, which is more widely discussed and understood, but it's also decisions on ability to get into court statutes of limitation abilities for agencies [00:09:30] to enforce the rules. The Supreme Court said that Securities Exchange Commission, in order to issue a fine to anybody violating these first laws, has to give them a right to a jury trial in court, which effectively shuts down the enforcement mechanisms. And it also affects, and this is relevant to what we're about to talk about, something called the Major Questions doctrine, which basically says that unless Congress specifically empowered an agency in very [00:10:00] clear language to do a particular important thing, it's beyond the scope of an agency to do what they need. Congressional Authorization Congress, and particularly I would add in the 1996 Communications Act, Congress typically gives broad authority to agencies and leaves it to them to fill in the blanks.

(10:20):
And now the lower courts are implementing this saying no, if Congress didn't say it in so many words, you can't do it. And this is being [00:10:30] implemented with unbelievably rapidly by the lower courts and of course the various regulated entities are taking advantage of the politicized nature of the judiciary right now to take these cases to very friendly forum, most notably but not exclusively the Fifth Circuit, the United States Court of Appeals for the Fifth Circuit, which holds the Title of the most conservative even reactionary court, [00:11:00] to the point that the US Supreme Court is repeatedly slapping it down for overreach. They're kind of pushing the court to go further than even this very conservative Supreme Court wants to go. And that's going to become relevant to us in a minute or two.

Christopher Mitchell (11:15):
So related to this, just so people who don't have as much of a civics background, the Federal Communications Commission, like other agencies, gets its authority from Congress, and so what you're saying is that it used to be the Congress would give a grant of authority [00:11:30] that was like, we want you to deal with these kinds of issues and if a novel issue arises that we cannot foresee right now, you can deal with that too with this grant of authority and the courts are saying no, that in fact if there's a new issue that comes up related to those things, Congress would have to go back and deal with it again. In communications, it might be a few things on matters of environmental policy, it could be thousands of issues that Congress would then have to become an expert in and try and deal with, [00:12:00] which is a recipe for doing nothing unfortunately.

Andy Schwartzman (12:04):
Let me give you a simple example of this, please. The 1934 Communications Act said, and this is core language that remains in section one of the Communications Act. The FCC is created and authorized to regulate communications by wire or over the air. That's the general language. [00:12:30] So that's in those days, telephone and telegraph and radio. But the Communications Act did not contain words like television,

(12:41):
Satellite radar, microwave, cable, although ultimately Congress did move in, but the FCC regulated cable television for like 10 years as just sort of a function of its regulating broadcasting because they were transmitting broadcasting stations. So the communication [00:13:00] sector, this broad general language gave the FCC enough basis to adapt its rules. As these technologies developed and evolved, the current thinking is that none of those things could have been regulated unless Congress said, oh, well we've got this new thing called microwaves, we're going to direct the FCC to regulate it. So it's a very basic concept. I'll alluded one other thing very briefly, which is that there's really two species [00:13:30] of federal agencies and the FCC is in a smaller group of what we call independent agencies that do bipartisan decision-making no more than three of the five members of the FCC can be from the same political party, and importantly, the president lacks the authority to fire those people.

(13:49):
And that's very different from the executive agencies like the EPA where the EPA administrative responds directly to the president, president can fire them, and that becomes relevant [00:14:00] later on as well. Okay, so within the context of the FCCs Universal Service programs under section 2 54 of the Communications Act, and again another broad general authority for the FCC to create and administer a universal service fund collected from telephone telecommunications providers who can pass that and typically do pass that cost on to their [00:14:30] customers, that money goes into a fund administered by a quasi independent entity called usac, universal Service Administration Company, always accessibility company access company. They administer it and it's composed, got a board composed of state, local officials, federal officials, consumer representatives and so forth. One of the elements of that, which is very important to a lot of your listeners is the, so-called E-Rate Provision, which was adopted [00:15:00] in the 1996 act that gives the requires schools, libraries, healthcare institutions, hospitals to be able to get access to essentially middle mile broadband access at a discounted rate and that, so-called E-Rate has just been critical to a broadband use and deployment and the anchor [00:15:30] institutions, schools, hospitals, libraries and so forth are critical, particularly in communities where affordability problems and deployment problems make it difficult to get in and access in other ways.

(15:44):
So the FCC, current FCC in trying to facilitate the use of this, this has been a big, big issue for then commissioner now chairwoman, Jessica Rosen morsel is [00:16:00] to treat the classroom, which is what the statute talks about. The law talks about understand what a classroom is today and school buses either are or are not effectively classrooms when you have not just kids going home in a kind of few miles away kind of run, but you have bands and sports teams and stuff that are often [00:16:30] traveling an hour or an hour and a half each way for away games and things like that. Students spend a lot of time on the school buses and if they have Internet access, it can facilitate their educational experience and absent that, it's very hard for them to do their homework and other kinds of educational activities. So the FCC said, well, effectively school buses are classrooms and so we are going to allow the E-Rate discount [00:17:00] to be used to provide Wi-Fi on school buses as a policy decision.

(17:07):
It's obviously a very wise one. It isn't by traditional constructions of statutory language as the courts have employed it defining a school buses as a form of classroom. It's not that big of a stretch. However, under the new judicial regime that we're dealing with, particularly [00:17:30] in this case the repealed, so-called Chevron doctrine, which gives SEC A lot of discretion and deciding what a classroom is under the law, this becomes a more difficult process. So a Texas couple who lost their son to suicide because of online bullying and who were very concerned about the adverse social impacts of social media, something that I'm not unconcerned about myself, [00:18:00] but they were the view that kids on school buses are going to be doing TikTok and all sorts of other things rather than their homework. And that this was a really pernicious thing. They were unhappy about it, but miraculously, this ordinary couple, not of any kind of special means or anything in Texas miraculously was able to obtain the legal assistance of some of the [00:18:30] most high powered conservative lawyers and most expensive conservative lawyers in the country. And we're talking about rates of a thousand $1,200 an hour per attorney. That's the kind of rates that are being charged here. One can suspect that this is not the molax money and one can expect that this is not a pro bono case, but rather this is money coming from somewhere,

Christopher Mitchell (18:55):
Right? Someone wants to challenge this and they would feel that they'll be more successful [00:19:00] if they can have this family at the front of,

Andy Schwartzman (19:03):
Right. They're much more attractive challenger,

(19:07):
They went to court. Now, I will avoid going deep into this, but there is a serious jurisdictional procedural problem with the way they went to court and because they did not really participate in the FCCs rulemaking about school bus Wi-Fi in [00:19:30] any other Circuit in the United States, the other 10 Circuit Courts of appeals, they would not be allowed to bring this case. They would be dismissed for under the terms of the applicable law governing judicial review. The Fifth Circuit is an outlier in that they have held that, oh, well that really doesn't matter if you're saying that an agency is doing something beyond its authority and [00:20:00] relying on that Fifth Circuit precedent, they took this case straight to the Fifth Circuit, which is based in New Orleans covers Louisiana, Texas. Essentially this outlier decision of the Fifth Circuit is actually one of the several things that the US Supreme Court has undertaken where they may well slap down the Fifth Circuit as they've done several times for overreach. And so even [00:20:30] though the FCC and Shelby,

Christopher Mitchell (20:34):
The school's, hospitals, sorry, health and Library

Andy Schwartzman (20:37):
Library Broadband Coalition intervened in the case in support of the FCC, we all filed motions to dismiss on the basis of this jurisdiction law and that the Fifth Circuit is an outlier. And so this case may still not get to the merits of the case because of this procedural problem. Sorry about the digression, but I need [00:21:00] to say that, but assuming it does, the argument is that under current construction of recent Supreme Court precedent, the FCC went too far in deciding that school buses are classrooms. That case is scheduled for oral argument next week, November 4th, people who set for punishment will be live streamed and it's unclear what's going to happen, and I am cautiously optimistic that ultimately [00:21:30] this case will be dismissed on those procedural grounds and without even Ultimate, they may try to decide the merits, but it's going to sit there to the Supreme Court rules otherwise.

(21:39):
But given the current Supreme Court doctrine is a tough case, it's a real 50 50 proposition for something that's I think indisputably invaluable public policy decision. So this is not only an example of how the FCC can try to interpret the Communications Act to try to do its mission [00:22:00] and an example of how the recent Supreme Court decisions had interfered with its ability to easily do these things. That should have been very non-controversial. I would add, without going into anything coming down the pipeline, is the FCCs also issued decision that will wind up being subjected to review at some point permitting the hotspots and lending hotspots, which is [00:22:30] something that was being done during the pandemic lending hotspots and let that be also covered by the eBay.

Christopher Mitchell (22:36):
So this case could well be in effect decided on things unrelated to the FCCs interpretation of classroom. People might see that in which case it would be likely tossed out because this family is not the appropriate party to bring a challenge and likely we would then see it refiled by someone else, I presume.

Andy Schwartzman (22:58):
Well, it's [00:23:00] kind of hard. There's a 60 day statute of limitations which would've expired.

Christopher Mitchell (23:05):
Okay, well then in that case, we can just move on. The thing that I wanted people to get a better sense of I think is this question, how hard it is to do law today when it feels like the ground is literally moving under your feet. It is a case that I think the precedence around and the rules around standing and who can bring cases, it's always been a little bit [00:23:30] in contention now it feels a lot in contention, but these cases, this case may be decided by facts unrelated to whether or not the school bus is a classroom. But I'm curious, is there a good argument against doing this? I mean, aside from perhaps a very narrow viewing of what a classroom is, do you have any sense of why Ted Cruz is so up in arms about this? Is he literally just afraid that these kids are going to use TikTok on the school buses?

Andy Schwartzman (23:59):
There is overall [00:24:00] broad bipartisan support for the various universal service fund programs and it's urban and rural support. And that's in no small part because the support coming from the Universal Service Fund goes to all those places and disproportionately goes to rural areas in red states. However, there is a faction that just wants to shut down government completely, [00:24:30] and that's the same people pursuing the challenge to the Universal Service Fund in the Supreme Court. And the same kind of thing here. It's a waste frauded abuse. This isn't what government should be doing kind of stuff. It is not numerically or percentage wise close to a majority in Congress or among politicians or in the general public, but they've got a lot of power and they're getting more power. And that's the kind of thing that [00:25:00] we're seeing.

Christopher Mitchell (25:00):
This is where, I mean, it's example 432 of Chris being surprised by things that I guess shouldn't surprise me, but I saw 15 attorneys general signed on to a request to the Supreme Court that they hear the Fifth Circuit case and that they toss out USF, and that surprised me to see attorneys general from 15 predominantly Republican rural states saying We want to throw hundreds of companies into bankruptcy. I was shocked

Andy Schwartzman (25:29):
The political [00:25:30] system outside the scope of our discussion today, but the political system really has been skewed because there has been inadequate tension paid to state and local level politics, and there's been a takeover to some considerable degree of people who really do not reflect, I think what the views of the broad general public are in a democratic way, and that's the fault of the people who have not been participating actively at state and local levels. Something I need to lecture you about, [00:26:00] Chris,

Christopher Mitchell (26:01):
Right? It seems like people make their decisions on any number of local and state issues based on how they feel about the president or the person at the head of the party at a given time that they support or oppose,

Andy Schwartzman (26:12):
Right?

Christopher Mitchell (26:13):
It's horrifying. So the Fifth Circuit, let's just wrap up on that quick and then we'll talk briefly about Title II, but what is the Benton Institute focused on and what are you focused on within this issue of the Universal Service Fund [00:26:30] and as we wait for and hope that the Supreme Court will hear the case?

Andy Schwartzman (26:34):
Okay, so this is another instance where the money to hire a high powered lawyers seems to have come out of nowhere. There's organization that really, it's actually been around for a very long time, but was essentially dormant for decades called Consumers Research, suddenly found the funds to hire very expensive, high-powered lawyers [00:27:00] and bring a bunch of cases involving not just the FCC, but some other federal agencies pursuing this kind of broad conservative agenda of taking the fangs out of the federal regulatory process. One of the things that legal scholars over the last 20 years, conservative legal scars over the last 20 years have invented is something that didn't really exist. They gave a name to it called the Non Delegation Authority.

(27:30):
[00:27:30] And in essence, the idea is that there's a couple of Supreme Court decisions from the 1930s that have been used to define the scope of how much power Congress can delegate to an agency. So unlike the major questions doctrine or the Chevron issues, where the question is whether Congress intended to give this much authority to define classrooms or whatever [00:28:00] the non delegation principle is, section 2 54 is really pretty explicit in defining how the Universal Service Fund should be created and function and defining the programs under it, but giving the SEC lot power. But what they're saying is that this is really delegating legislative power, congressional power to another branch of Congress, and these are really legislative functions. They characterize the fees that are collected from [00:28:30] voice telephone revenues, mostly landline, but also some wireless revenues, and then doled out to the universal servicemen, back to the carriers to administer the various USF programs that this is a tax, not a fee, but a tax.

(28:53):
And the legal significance of that is that a tax is presumably the authority of Congress [00:29:00] and not others to assess. So if they decide how much a driver's license costs in a local community, that's obviously a fee, not a tax, but if everybody has to pay a certain percentage when they buy something in a sales tax, that's a tax. So the core of the argument, there's other pieces to it, is that they've delegated taxing authority and even worse, the FCC created [00:29:30] this quasi-private entity USAC and then sub delegated some of the administrative responsibility to this presumably unaccountable private entity. Now that getting too deep in the weeds here, USAC is very much controlled by the FCC, your P USAC decision of the FCC. The FCC tells USAC what to do, and in particular the subject matter of the litigation is the quarterly [00:30:00] contribution factor, the percentage that added to voice phone bills each quarter.

(30:06):
This is what we call a ministerial function. It's basically arithmetic, the FCC, it gives them the numbers as they figure out what this percentage should be for the next three months, and it's very much at the behest of the SEC, but the argument is that this is excessive authority delegated to the SEC and then sub delegated to us E. This group challenged this in each excessive quarter [00:30:30] they've brought a case. First they challenged it in the Sixth Circuit Court of Appeals, a conservative Circuit they lost, then they challenge it in the 11th Circuit, another conservative court they lost, then they challenged it in the fifth Circuit, the most conservative Circuit, and they lost again in a panel decision. They lost in a unanimous decision, which agreed with the other two courts that this was fully constitutional in the bounds of this 1930s [00:31:00] precedents. So this was then taken to the full Fifth Circuit on bank French from the French E-N-B-A-N-C to rehear the case with the entire membership of the court, and we almost won there. We lost nine to seven. Most of the Fifth Circuit votes in these conservative cases are like 12 to five.

(31:24):
We lost nine to seven, and that's one vote short because a tie, we would've won on a tie,

Christopher Mitchell (31:29):
It would've affirmed [00:31:30] the lower decision,

Andy Schwartzman (31:30):
Would've affirmed the lower court. So we came very close. So the Solicitor General of the United States, who represents the government, the FCC filed a tertiary petition with the Supreme Court. There are tertiary petitions filed by the conservative groups challenging the sixth and 11th Circuits, which may also be heard at the same time. It may just be the Fifth Circuit case we, which is I represent Benton, NDIA, National Digital Inclusion Alliance and Media Justice [00:32:00] as interveners supporting the FCC. We've also filed a ary petition along with Shelby. It's represented by others. The case, it could get delayed for some technical reasons, but most likely the case is teed up to be considered by the Supreme Court. They have these Friday conferences where they consider these petitions and it's probably going to be on the November 15th conference, which means that the Supreme Court would agree [00:32:30] to hear or not hear the case then could be delayed, some other things could happen, but that's the most likely scenario.

(32:37):
And because everybody on sides wants the Supreme Court to hear the case and because there's a split in the Circuits, which is one of the important criteria in deciding whether to hear a case and most importantly because it declares a statute of the United States Section 2 54 of the Communications Act essentially unconstitutional. That's something that the Supreme Court takes very seriously, and the solicitor general [00:33:00] doesn't file a lot of Circuit petitions and they're most typically granted, unlike the general run of Circuit petitions as close to a sure thing as you can get that, unless they delay it for some of these technical reasons, the Supreme Court will agree to hear the case. There will be briefs early next year, oral argument in the spring and a decision by June 30th. In all likelihood, that could change, but that's the overwhelming likelihood of scenario. I'm not happy it's in the Supreme Court. I prefer it wouldn't be, but [00:33:30] as these cases go, I like our chances,

(33:34):
Unlike some of the cases that they're trying to bring, involving the major questions doctrine that deal with this very broad general principles. This is very specific. Section 2 54 has a lot of direct authority. Dear Congress knew what it was doing and the way they've tried to define this as unaccountable bureaucrats off on their own, frolic is just factually wrong. They describe [00:34:00] USAC as being completely controlled by telephone carriers, case carriers. It isn't. So I like our chances. I prefer not to be there with this Supreme Court. One can never know, but it most likely be agreed to hear by the Supreme Court, most likely be decided by next June 30th and we'll have to cross our fingers.

Christopher Mitchell (34:22):
I would only add to all that that I'm deeply concerned about the amount of delegation Congress has given away. I feel [00:34:30] like we would all be better served if Congress did more legislating and took itself seriously and actually had to be held responsible for doing things. This is not an area that needs to change when it comes down to matters of declaring war and things like that. I think there's some areas where I would say I'd like to see Congress step up more, but on the issues of the Federal Communications Commission, this is a system that's worked. I feel like I would want to tweak it. In some ways the [00:35:00] idea of throwing it out by the courts as opposed to Congress deciding on a new approach to me seems like an overreach, so I really hope that you're successful in the work.

Andy Schwartzman (35:10):
Well, I would say two important things about that just in closing. First, we need to fix various aspects of the way the Universal service fund functions, and Congress has been looking at that for part two long a time, and this case may hold a gun to their head to make that happen. [00:35:30] So that would be a positive outcome, although I'm not looking forward to the risks of getting to that positive outcome because it could be very negative. The second thing I point is a broad general observation about what you just said. This is a function of the increasing polarization of our political system. It is much harder for legislators, not just in the United States Congress, but in the States. It is much [00:36:00] harder to get agreement on legislation, much more partisan, much more divided, much, much less ability to get the necessary agreement. Very few things can get out of the United States Senate unless they're done through this reconciliation process that eliminates the filibuster vote. Congress is so split and what they tend to do, and the 1996 telecommunications is a prime example of this trend that was well underway by [00:36:30] then but is accelerated, is that when they can't agree on something they hunt,

(36:36):
They say, well, give it to the FCC. You figure it out. And that is running straight up against the judicial doctrines that we talked about at the beginning, which says that they need explicit authority for Congress to do it. Congress hates getting too much detail because they annoy somebody. So they tended to speak in broad general terms and then give it to the federal [00:37:00] agencies to decide which you're valid concern that Congress should be more specific, but they can't reach a majority and get it through if they get too specific. So they tend to punt, and this is a broader political problem that is much bigger than the universal service.

Christopher Mitchell (37:16):
Yes, I agree. I don't want people to be confused to think that you're changing your position on something. We would not want to see Congress having every year to decide what the contribution factor is. That's not a good use of Congress's time.

Andy Schwartzman (37:29):
Well, [00:37:30] it's worse than that. If you turn it as at t would like to do, you turn it into an annual federal appropriation. You're talking about the rarefied world of the congressional appropriations process where the fat cat lobbyists, if you will control the process and where groups like ours and the advocates for things like the Universal Service Fund simply do not have the resources or the power or the connections to work in an [00:38:00] annual appropriations process. You see how messy that is each year. So we really need a solution that creates a more permanent self-executing funding mechanism rather than the uncertainty and variability of the number going up and down every year and not knowing what it's going to be next year. That's just an unworkable outcome

Christopher Mitchell (38:21):
Right. Now, very briefly on net neutrality, people are broadly familiar with the issue, but I don't know if people are following exactly [00:38:30] what the schedule is. So what is happening in the near future around that issue?

Andy Schwartzman (38:34):
Oh boy. Near future is by the time people hear this podcast, we will have had oral argument in the case in the Sixth Circuit Court of Appeals conservative court, relatively conservative panel on October 31st, which is Thursday morning.

Christopher Mitchell (38:48):
Will they do it in costume?

Andy Schwartzman (38:51):
Believe me, there's a lot of thought about that. This case is somewhat misunderstood in two respects. Again, I'll be very brief. Number one, [00:39:00] we colloquially it and speak loosely about net neutrality, but this is reclassification of broadband under entitled to the Communications Act, which is much more than blocking and throttling what's generally understood net neutrality be. It is also about public safety, it's about cybersecurity and it's about mundane things like poll attachments.

Christopher Mitchell (39:22):
I was hoping you would say that,

Andy Schwartzman (39:24):
Which is so essential to broadband deployment. So it's much broader than blocking and throttling. The second thing I would [00:39:30] say is that I keep hearing people talk about, oh, well, the Supreme Court overrule Chevron. That really seals the case on that trial in the courts. Well, that's maybe half right, but this case is not about Chevron and about the overruling of Chevron. The FCC anticipated that Chevron will be overruled, and they did not make an issuances decision in a way that where Chevron would be overruled, thatright would be controlled [00:40:00] again, and it's really not about that. It's about a different set of constitutional doctrines that the Supreme Court has developed called Major Questions doctrine, and that's what it's going to be about. And again, this is another one of these things about whether Congress adequately delegated the authority, but it's not about Chevron and that's not generally understood. In any event, October 31st is the oral argument. It's a real jump ball and depending on what happens, this case is also perhaps, well on its way to the Supreme [00:40:30] Court,

Christopher Mitchell (40:30):
And I think we have the ghost of Scalia on our side on this one. Right, which is nice.

Andy Schwartzman (40:35):
In the absence of Chevron deference, courts are supposed to determine on their own the best reading of the statute. The prior doctrine said if the FCC could go one way, we go the other way, and if it's reasonable either way, that's okay under the new local right doctrine if that's not the case. So you're supposed to look at the plain text of the statute and determine the meaning of Congressman, the plain [00:41:00] text and the statute. Well, when you go back to the decision upholding, allowing broadband to be classified under the deregulatory function of Title I of the Communications Act rather than Title II, that was a case called Brand X. It was six to three decision, and among the three was Justice Scalia, who was a textualist and who happens to be the only communications lawyer ever to have served on the United States Supreme Court. He knew this stuff [00:41:30] and he wrote a strong explaining why the plain language of the Communications Act required that broadband be treated as a Title II regulatory service, not a Title I information service. Again, avoiding the details. And so our case and our briefs stress very much that Scalia was right and we love Scalia.

Christopher Mitchell (41:59):
We'll keep that as a [00:42:00] highlight. We'll play it everywhere for you, and thank you so much for your time today, Andy. I appreciate all your work, your many years of helping us to have better communications, broaden it to everyone, which is I think the dream of the United States of America, the dream of us to have a communication system that serves everyone's needs to be able to speak and hear

Andy Schwartzman (42:25):
Well, thank it's my pleasure to be able to speak to your audience about this.

Ry Marcattilio (42:30):
[00:42:30] We have transcripts for this and other podcasts [email protected] slash broadbandbits. Email us at [email protected] with your ideas for the show. Follow Chris on Twitter. His handle is at community networks. Follow community nets.org. Stories on Twitter, the handles at muni networks. Subscribe to this and other podcasts from ILSR, including Building Local Power, local Energy Rules, and the Composting for Community Podcast. You can [00:43:00] access them anywhere you get your podcasts. You can catch the latest important research from all of our initiatives if you subscribe to our monthly [email protected]. While you're there, please take a moment to donate your support in any amount. Keeps us going. Thank you to Arnie Sby for the song Warm Duck Shuffle, licensed through Creative Commons.