Marc Martin, a lawyer who helps companies understand FCC rules and has worked for decades in the orbit of the Federal Communications Commission (FCC), expects multiple FCC cases to go before the Supreme Court.
In an interview with Telecompetitor, Martin discussed the recent Fifth Circuit Court of Appeals decision about the Universal Service Fund (USF), the Sixth Circuit’s temporary block on the FCC’s proposed net neutrality rules — a block that was extended just yesterday — and what changes may happen with the presidential election.
Martin, a partner with Perkins Coie LLP, consults with technology companies on regulatory and transactional issues. From 1991 to 1994, he served as attorney adviser for the FCC.
The Universal Service Fund
Martin called the Fifth Circuit Court’s recent decision — that the framework through which the FCC created the USF is unconstitutional — “a shock to the industry.”
He referred to the Fifth Circuit Court as a “forum-shopping place for people to overturn regulations,” and noted that two other circuit courts upheld the Universal Service Fund in recent years. Due to the conflict among the court decisions, “there’s no place to go other than the Supreme Court.”
The writing on the wall doesn’t look good.
Martin pointed out that, in the Supreme Court’s last session, there were three decisions “hostile” to regulatory agencies: (1) the Chevron deference case, (2) a ruling against the Environmental Protection Agency, and (3) a decision against the Security and Exchange Commission.
In that environment, Martin says it’s “likely” that the Supreme Court will uphold the Fifth Circuit Court’s ruling against the Universal Service Fund and overturn the other two circuit court decisions.
Net Neutrality
“I think it’s a dead man walking,” said Martin about the FCC’s proposed net neutrality rules. He calls the net neutrality rules a “relatively harmless regulation,” and points out that it has been enforced by both Republicans and Democrats in the past.
“Net neutrality is a solution in search of a problem,” said Martin, pointing out that a provider blocking websites is against the rules of net neutrality, but has never been a large issue in practice.
Throttling speeds, Martin admitted, is a more serious problem, and anti-throttling enforcement was originally the work of Republicans during the Obama administration.
The Washington, D.C. Circuit Court of Appeals upheld net neutrality in 2016. The issue arose again in 2017, and all but one justice on the D.C. Court of Appeals declined to reconsider their 2016 opinion. The one dissenting justice was Brett Kavanaugh, then serving on the D.C. Court of Appeals.
Martin pointed out that, with Kavanaugh now on the Supreme Court and the recent Chevron deference ruling — which, according to Martin, essentially says agencies like the FCC can no longer “change their mind” — the Supreme Court is likely to look unkindly on the FCC case and strike down their proposed net neutrality rules.
The 2024 Presidential Election
Beyond these recent FCC cases, we asked Martin to look into his crystal ball and predict what may happen to the FCC depending on who wins the presidential election.
In the case of Democrat candidate Kamala Harris prevailing, Martin believes the FCC will continue on its current course (whether under current Chairwoman Jessica Rosenworcel or someone else).
If the Republican candidate Donald Trump wins the election, Martin believes current Commissioner Brandon Carr is likely to become Chairman of the FCC — “it’s his job to lose,” said Martin.
Carr, Martin predicted, would take “an aggressive deregulatory approach.” There is a belief, he said, that large, national companies like Verizon and AT&T “do well under Republican administrations,” and FCC enforcement of those companies would go down.
That said, Martin thinks some FCC policies will remain untouched. Bridging the digital divide in the United States has bipartisan support, and Martin anticipated that efforts to expand broadband to the unserved and underserved will remain strong.
