Cleland served as Deputy United States Coordinator for Communications and Information Policy in the George H. W. Bush Administration. Eight Congressional subcommittees have sought Cleland’s expert testimony and Institutional Investor twice ranked him the #1 independent analyst in his field. Scott Cleland has been profiled in Fortune, National Journal, Barrons, WSJ’s Smart Money, and Investors Business Daily. Ten publications have featured his op-eds. For a full bio see: www.ScottCleland.com.
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Given that the USTelecom v. FCC appellate challenge of the FCC’s Open Internet Order is so important to net neutrality, the FCC’s authority over the Internet, and broadband providers’ future, and given that Judge Tatel’s thinking is so important to the outcome of this case, wouldn’t it be important to better understand Judge Tatel’s personal reasoned public explanation of how courts adjudicate cases just like USTelecom v. FCC?
We can easily hear from Judge Tatel directly and concisely what his legal approach is to cases like U.S. Telecom v. FCC, because he gave an exceptionally relevant, pertinent, general speech on administrative process/rule of law in 2009 entitled: “The Administrative Process and the Rule of Environmental Law” in 2009, which was printed in the Harvard Environmental Law Review. (A hat tip and thank you to Dan Berninger, a formal plaintiff against the FCC in this case, for flagging the exceptionally telling speech on administrative law by Judge Tatel.)
One can analytically compare Judge Tatel’s speech with his relevant precedent decisions (Comcast v. FCC in 2010, Cellco v. FCC in 2012, and Verizon v. FCC in 2014) to see that Judge Tatel has dutifully applied the framework and thinking he laid out publicly in his administrative overview speech, to his FCC court decisions.
Let me first directly quote the relevant guidance and warnings against agency overreach from Judge Tatel’s 2009 speech, and then directly quote the relevant Judge Tatel questioning of the FCC’s General Counsel Jonathan Sallet in the December 4, oral arguments in USTelecom v. FCC.
Then the reader can judge for herself/himself, if Judge Tatel provides any “tells” about what he thinks about the FCC’s reasoning, process and justification for changing its mind in pursuing a Title II legal strategy over a Section 706 legal strategy in the FCC’s Open Internet Order.
Direct relevant quotes from Judge Tatel’s 2009 speech:
“… in both Republican and Democratic administrations, I have too often seen agencies failing to display the kind of careful and lawyerly attention one would expect from those required to obey federal statutes and to follow principles of administrative law. In such cases, it looks for all the world like agencies choose their policy first and then later seek to defend its legality. This gets it entirely backwards. It’s backwards because it effectively severs the tie between federal law and administrative policy, thus undermining important democratic and constitutional values. And it’s backwards because whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles — whatever the President’s party, however popular the administration, and no matter how advisable the initiative.
My goal this morning is to convince you not only that agencies need to take the fundamental principles of administrative law to heart, but that attention to such principles early in the policymaking process is the only way for agencies to ensure that their policy choices are both constitutionally legitimate and implemented without delay.” …
“… if agency officials see administrative law as a fetter, they’re liable to try to escape — something that will only lead to further trouble in the courts. More fundamentally, such a view would be just plain wrong. Judicial review of administrative action protects the very essence of constitutional democracy and the rule of law. The legislative process set out in the Constitution, with its bicameralism and veto provisions, is designed to make it difficult to alter the legal status quo. By contrast, agencies, staffed by appointment and somewhat insulated from political accountability, can exercise such power with one bureaucratic pen stroke. We tolerate such sweeping authority only because meaningful judicial review ensures that agency actions are consistent with federal law, and that those actions rest not on arbitrary reasons but on the expertise that justified the congressional delegation of authority in the first place. Thus, the two primary elements of judicial review — ensuring that agency action is authorized by law and is neither arbitrary nor capricious — work together to substitute for the constitutional requirements that govern congressional action.”…
“In addition to acting within the boundaries of statutory text, agencies must respect judicial decisions interpreting that text. Judicial review would be toothless if agencies could simply disregard rulings with which they disagree. They can’t, but on occasion they try anyway.” …
“Of course, judicial review involves far more than just ensuring that agencies act within their statutory authority. Under the APA, courts must set aside agency action that is “arbitrary” and “capricious” or “an abuse of discretion.”10 Courts police this line by requiring agencies to give reasoned explanations for their actions. As the Supreme Court explained in the landmark State Farm case,11 the purpose of this reason-giving requirement relates to the rationale for an agency’s very existence. Congress delegates authority to administrative agencies not to authorize any decision at all, but to permit agencies to apply their expertise. The reason-giving requirement allows courts to determine whether agencies have in fact acted on the basis of that expertise.
This rule applies with particular force when agencies change existing policy, as happens quite often during times of transition. Obviously, agencies have authority to move from one permissible position to another, but when doing so they must adequately explain why. In the words of Judge Harold Leventhal, whose seat on the D.C. Circuit I am honored to occupy, “an agency changing its course must supply a reasoned analysis indicating that prior policies . . . are being deliberately changed, not casually ignored.” Judge Leventhal continued, “if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”12 Although the Supreme Court recently made clear that agencies are held to no higher burden of justification when they change a policy than when they adopt one for the first time, the Court still emphasized that agencies may not “depart from a prior policy sub silentio or simply disregard rules that are still on the books.” …
“To ensure that agencies in fact make decisions based on their expertise, courts hold them to the reasons they articulate at the time they act. Appellate counsel may not supply newly minted rationales after the fact, nor can we.” …
“Any lawyer practicing administrative law well knows these basic requirements. But when reading a set of briefs or listening to oral argument, I sometimes wonder whether the agency consulted its lawyers only after it found itself in court. I hope that’s not the case. The constitutional values that animate our core principles of administrative law require agencies to consider the legality of their policies from the very beginning of the administrative process. Indeed, Julius Genachowski, the new Chair of the Federal Communications Commission, recently told me that he is working to do exactly that at his agency.” …
“This is not just about satisfying the D.C. Circuit. It’s about being responsible public servants. As I have explained, the doctrines of administrative law are not barriers erected by activist judges to prevent agencies from exercising their natural authority to make public policy. Just the opposite. These doctrines exist for a compelling constitutional reason: they keep agencies tethered to Congress and to our representative system of government. They ensure that the complex administrative state of the twenty-first century functions in accordance with the constitutional system established in the eighteenth. In other words, the fundamentals of administrative law really do matter, and they should be understood as engines of administrative policymaking, rather than merely obstacles cluttering the road.” …
Direct quotes from Judge Tatel’s questioning of FCC General Counsel Jonathan Sallet December 4, here (from 35:00-38:45 of the audio file):
“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?”
In closing, what do you think?
Did Judge Tatel provide any signals in his questioning of the FCC about the adequacy of the FCC’s reasoning, process and justification for “changing its mind” in pursuing a Title II legal strategy over a Section 706 legal strategy in the FCC’s Open Internet Order?
Methinks he did.
His persistent questioning above belies a concern that the FCC may not have provided a reasoned justification in the written Open Internet Order (that he could find) for the FCC’s initial, foundational decision of why the FCC “changed its mind” about asserting Title II authority (over Verizon Section 706 authority) to implement net neutrality, without presenting new facts since Verizon, and when the FCC did not assert it had Title II authority to implement net neutrality in either Comcast v. FCC or Verizon v. FCC.
Simply, Judge Tatel in his 2009 speech made it clear that it is the agency’s responsibility to provide a reasoned justification for its assertion of authority in its public written order, not the court’s.
Lastly, Judge Tatel’s second to last form of his same question should be the most ominous to the FCC: “What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify? [bold added for emphasis]
The strong implication here is that Judge Tatel suspects there were outside, unacknowledged, reasons that “drove” the FCC to “change its mind.”
If the Judges focus on that administrative law and due process concern at all, they can easily find non-independent, non-expert reasons in the pleadings and oral arguments for why the FCC majority changed its mind: i.e. comedian John Oliver’s net neutrality comedy sketch that spawned millions of comments to the FCC in favor of Title II; congressional investigations into White House meetings to facilitate political pressure on the FCC to adopt Title II; and then the President’s public call for the FCC to employ a Title II legal strategy.
If Judge Tatel and his fellow judges care about the answer to Judge Tatel’s foundational question of “What drove the Commission to conclude that the authority it had over 706 wasn’t adequate and that it mattered to reclassify” – that appears to be a very problematic line of thinking for the FCC’s overall case.
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.