Did FCC Read Judge Tatel Right in Pursuing Title II over Section 706?

Published December 9, 2015

The central overriding question in the USTelecom v. FCC case challenging the FCC’s Open Internet Order may be: did the FCC read Judge Tatel right in that he de facto guided the FCC to pursue Title II to create the most solid legal foundation for net neutrality? That has been the public legal mantra of the FCC and the net neutrality movement for well over a year.

In the oral arguments last Friday before the D.C Circuit Court of Appeals, what did Judge David Tatel potentially signal about the Title II over 706 legal premise of the FCC’s case?

Please consider Judge David Tatel’s very persistent and telling line of questioning of FCC General Counsel Jonathan Sallet about the FCC’s explanation of why the FCC abandoned its 706 regulatory approach in favor of reclassifying, because it may be the most significant “tell” of how this case could turn out, because Judge Tatel is widely-believed to write this decision, given he authored the most relevant net neutrality precedents, Verizon v. FCC in 2014 and Comcast v. FCC in 2010.  

Judge Tatel’s ‘706 vs. Title II’ line of questioning is telling because it focuses like a laser on what is the natural fulcrum of this case: why the FCC changed its mind mid-process from basing the FCC’s net neutrality policy and authority on Section 706, to basing it on Title II.

Arguably everything that matters in this case flows from that single organizing, foundational FCC decision, given that all of the legal and APA challenges to this case result from, and rotate around, that fateful ‘706 vs. Title II’ FCC decision.  

That is why we will focus on Judge Tatel’s grilling of FCC General Counsel Jonathan Sallet in the Court’s audio record of the oral arguments here from 35:00-38:45. I have transcribed below only Judge Tatel’s line of questioning in order to spotlight his focus and determination in getting a “crisp” answer from the FCC to this question that is obviously important to Judge Tatel. 

Judge Tatel to FCC General Counsel Jonathan Sallet:

“I ask you a non-Brand X, non statutory question which is that, it seems to this court’s Verizon decision, the Commission seemed headed for regulating under 706,  you know, that the Commission even called it, the blue print offered by the DC Circuit  … that’s the Commission’s word — not mine. And so what, how do you describe the Commission’s reason for abandoning that approach? What’s the policy explanation for that decision? …”

“The question is what after the Verizon decision; after this Verizon’s court’s decision, after the Commission focused its attention on proceeding under 706? What changed its mind?  It couldn’t have been a change in circumstances — right? The circumstances are all essentially the same. What is the crispest answer? …I couldn’t find it in the order.”

“What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify? That’s my question. It couldn’t be changed facts; it had to be a different perception of what was happening. What is that?”

What does Judge Tatel’s focused and persistent line of inquiry suggest?

First at the start, Judge Tatel said he was asking a “non-Brand X, non-statutory question.” Well what kind of question would an appeals court judge be asking of an expert agency that is seeking substantial court deference? While he did not say so, the strong implication here is that his oft-repeated core question was relevant to the court’s thinking about how much deference the FCC is due in this case.

How fact-based and expert was the FCC’s decision-making process? How independent and objective was the FCC’s process? How thorough and fair in notice and due process was the FCC’s rulemaking process here? How reasonable was the process and thinking of why and how the FCC “changed its mind” in this process?

Anyone that listened to the oral arguments would glean that all three judges were well aware of the unusual external circumstances and pressures surrounding the FCC’s decision-making process because they were briefed on them, and they were also explained in the challenges to the FCC’s APA/due process.

My point here, is that if Judge Tatel and the court begin their thinking with questions about how much deference the FCC is due in the new legal environment of a Roberts’ Court, that is characterized by limiting the amount of Chevron deference expert agencies are judicially due, this is not a place the FCC would like this court to start, as it is a starting point of factual weakness rather than strength.  

Second, despite earlier asking the Petitioner’s lawyer Peter Keisler “don’t you have to start with Brand X?” this later line of questioning suggests Judge Tatel is starting his thinking from his Verizon decision and what led up to the FCC’s decision to “abandon” 706 for Title II. Given that Judge Tatel asserted that the circumstances and facts did not change, and “it had to be a different perception of what was happening,”  (and the FCC’s General Counsel did not disagree with those Judge Tatel assertions), it appears Judge Tatel has established a type of chronological starting point in his thinking of this case. That chronological starting point of deciding to abandon Judge Tatel’s Verizon 706 precedent would appear to logically come before thinking about, and consideration of, the FCC’s subsequent thinking about justifying Title II via Brand X. 

My point here is that Judge Tatel apparently found a big hole in the FCC’s justification of its core decision in this case. Judge Tatel apparently established: first that he “couldn’t find” in the FCC’s order (the record) an explanation for the FCC’s dramatic 180 degree change in thinking about the legal authority the FCC has over net neutrality and the Internet that it did not assert in Verizon v. FCC or Comcast v. FCC; and second that there were no changes in facts since the Verizon decision two years ago.

It is problematic for the FCC that all of the legally controversial new mandates that the FCC now wants to dictate under Title II — i.e. applying Title II to info services, interconnection, and mobile; banning paid prioritization; and inventing a vague and apparently unbounded Internet Conduct Standard — rest on the bearing point of a foundational legal question, that was not justified at all in the record of the FCC’s Open Internet Order, and that apparently was not fact-based.

It appears the FCC needs this Court to completely ignore a lot of what it knows about this case, in order to uphold it in its entirety.

Third, if Judge Tatel somehow started with a predisposition of granting the FCC substantial Chevron deference to uphold the strongest possible FCC net neutrality rules under Title II (as the FCC and net neutrality proponents have long implied and trumpeted publicly to justify their actions), why would Judge Tatel ask the same core question, in literally nine different ways, that all have the practical effect of spotlighting glaring core policy, explanatory, and factual omissions in the FCC’s record, argument, and justification that could be used to overturn his purported pro-Title II subsequent decision on appeal to the Supreme Court?

In addition, if Judge Tatel, or the D.C. Circuit Court of Appeals somehow had the predisposition to help the FCC legally sustain its Title II reclassification justification sight unseen, why would Judge Tatel have disavowed the FCC’s use of the word, “blueprint” in noting, in an apparent annoyed tone that, “that’s the Commission’s word — not mine”? (Listen at 35:17-24.)


If Judge Tatel’s thinking about of this case starts with his tightly and expertly written Comcast and Verizon precedents and then moves next to the whole process of how this case came before his court — i.e. the decision over which what legal authority empowers the FCC to most strongly enforce net neutrality — it appears very problematic for the FCC.

Everything that the FCC and net neutrality proponents want out of this case – i.e. substantial court deference to its asserted expert, independent, objective, decision-making; and the court fully upholding its Title II reclassification power to regulate Internet info services, interconnection, mobile, paid prioritization and Internet conduct going forward – flows directly and completely from the FCC’s seminal decision to “change its mind” and “abandon” its 706 approach for Title II.  

The reader has to decide on his/her own, is the FCC’s case built upon an accurate read of Judge Tatel and his Verizon v. FCC decision? Or not?

Methinks not.

[Originally published at Precursor Blog]

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.