For more than two decades, Andrew Schwartzman ran Media Access Project, a nonprofit that battled media ownership deregulation in the courts (including the U.S. Supreme Court) and dealt with issues before the FCC and Congress. Since July 1, 2019, he has been senior counselor at the Benton Foundation Institute for Broadband & Society, as well as maintaining a consulting practice. Throughout, he has fought tirelessly for his and his clients’ view of the media’s public-interest obligation. He spoke with Multichannel News senior content producer, Washington, John Eggerton. 

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What is your role at the Benton Foundation Institute? Along with Gigi Sohn and Jon Sallet, I serve as Benton’s eyes and ears in the D.C. policy process. I also represent Benton in FCC rulemakings and litigation. Following the day-to-day evolution of the policymaking process is more labor-intensive today. My mission includes sharing my five decades of experience on legal and policy advocacy as a mentor to other public-interest advocates.

You participated in the lower court oral argument on media-ownership rules, which recently got a Supreme Court hearing. Isn’t focusing on broadcasters fighting the last war? I think broadcast-ownership limits remain very timely. These rules ensure a diversity of voices and perspectives at the local level. The industry quite rightly says that over-the-air TV and radio continue to be the most important source of news and information, especially at the local level. CNN and FNC [Fox News Channel] don’t help people decide for whom to vote for on the City Council, and they don’t provide high-school football scores or local weather. Social media have become a means of redistributing news generated by others and TV and radio websites are among the major sources of forwarded links about local issues.  

How does having to do oral arguments remotely change the dynamics? The Supreme Court’s temporary use of telephonic oral arguments significantly changes the dynamic.  … In the COVID-era telephonic system, each justice is called on according to seniority and gets a few minutes to ask questions, one on one. Not only do the advocates have less opportunity to determine the direction of their presentation, but they lose the benefit of seeing the facial expressions and body language of the justices. This makes a very big difference.

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Should the government start regulating big tech? Why or why not? I have supported the idea of creating a new specialized agency to regulate competition in the tech industry. The question of what to do when a few companies control a major sector of the economy is hardly a new one, but traditional antitrust concepts and remedies are not fine-tuned for digital technologies. We need to explore the best way to preserve free speech values in a system that is dominated by a few large companies.  

What would you like a Biden FCC to concentrate on once it gets a majority? The immediate challenge is dealing with the impact of COVID. Thus, extending broadband access support for lower-income communities must be its first priority. Like many other industry sectors, I expect large broadcast groups to claim the pandemic somehow justifies lifting ownership limits.  While I share the concern of finding ways to promote local journalism, I believe that allowing additional local concentration would hurt, not help. Promoting a healthy and diverse local media environment is a long-term issue. We can start by inviting new entrants through expanding opportunities for people of color and women to enter the business. 

The Benton Foundation has changed its name to the Benton Institute for Broadband and Society, putting an exclamation point on its longstanding efforts to promote broadband deployment, adoption and inclusion. 

“All Americans should have access to competitive, High-Performance Broadband regardless of where they live or who they are. In the Digital Age, open, affordable, robust broadband is essential for enabling all of us to reach for—and achieve—the American Dream,” said executive director Adrianne Furniss in announcing the name change. “Our new name squarely reflects our accelerating efforts to advance policies that help ensure broadband opportunities for everyone.”  

The change also comes in advance to its planned release of a comprehensive action plan for closing the digital divide: "Broadband for America’s Future: A Vision for the 2020s." 

In other news, Benton announced that veteran communications attorney Andrew J. Schwartzman, currently senior counselor to Benton, will be joining the institute from Georgetown Law’s Communications and Technology Law Clinic while continuing to teach at Johns Hopkins.  

Schwartzman will focus on "maintaining 2015’s network neutrality rules and reforming and modernizing the Universal Service Fund Lifeline program," Benton said.

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For those who occasionally mix up the Federal Trade Commission and Federal Communications Commission in references (or headlines, not that reporters ever do, but just saying), it’s nice to know officialdom occasionally misses the mark as well.

Such was the case with the 6th U.S. Circuit Court of Appeal’s recent decision on the FCC’s pre-emption of state laws limiting municipal broadband buildouts — the court struck down the FCC move (see page 5). In the judgment order PDF circulated by one party to the case soon after the judgment was handed down, the clerk of the court cites a decision of the FCC, then orders that the “Federal Trade Commission” order be reversed. By the time the judgment made it onto the PACER electronic legal system, the FCC had regained its rightful place.

“Minor mistakes are common and inevitable,” Andrew Schwartzman, one of the attorneys following the case, said. “Lifetime tenure notwithstanding, judges and clerks are human.”

The Wire would add “reporters” to that list.

WASHINGTON — The Federal Communications Commission won a big victory in a federal appeals court with a ruling that the agency had sufficiently justified its Title II-based approach to network-neutrality rules. But the last chapter has yet to be written in the years-long legal battle.

Internet-service providers have vowed to continue the fight, either by appealing the three-judge panel decision to the full U.S. Court of Appeals for the D.C. Circuit, or by going straight to the U.S. Supreme Court.

Some interested parties huddled with reporters after the decision to talk about the implications of the court’s call and prospects on appeal.

POTENTIAL LINES OF APPEAL

Network-neutrality detractors seemed to agree that the FCC’s decision to reclassify wireless under Title II of the Communications Act might be fruitful ground for appeal, given the distinctions the FCC had previously drawn between wired and wireless, though they were not handicapping prospects for success.

Another possibility at the Supreme Court, said Russ Hanser, partner at Wilkinson Barker Knauer, was what might be a nascent doctrine at the Supreme Court regarding reviews of particularly important agency decisions, in which agencies have “reshaped” the statutory authority bestowed by Congress.

Attorney Andrew Schwartzman, who supports the Title II-based rules, wasn’t buying that argument. He called “fanciful” the suggestion the Supreme Court wants to cut back on traditional deference by suggesting some cases are “too big” for Congress to have meant to delegate its authority.

“The Supreme Court has already said [in the Brand X case upholding the FCC’s previous definition of Internet access as an information service] that the reclassification issue was properly delegated to the FCC,” Schwartzman said. “I doubt that there is any other statute in the last few decades which so clearly delegated so much to the FCC for decision.”

Hanser cited a case involving the Affordable Care Act (aka Obamacare), in which the Supreme Court said in cases of such national importance, the court’s traditional deference to agency decisions might be more limited. That calls into question how much discretion agencies have, he said.

When Congress gave FCC forbearance authority, Hanser added, most people saw that as a deregulatory move. “There seems to be something strange to use it to vastly expand regulation, just not as far as it otherwise would have been expanded,” he said.

He would not be surprised if appeals of the rules to the Supreme Court focused on how much authority agencies have to create regimes different from the ones anticipated in the statute, he said.

Seth Cooper of free-market think tank Free State Foundation thinks the FCC’s general-conduct standard is another weak spot in the court decision.

“The D.C. Circuit’s light-touch review of a heavy-handed regulatory order offered an unsatisfying analysis of the general conduct standard, too eagerly downplaying its vagueness,” Cooper said in a blog post.

Cooper said the vagueness issue should be brought up on appeal, but an as-applied challenge could also be the legal vehicle to challenge the network-neutrality rules. If the FCC was to make a ruling based on the general-conduct standard — by disallowing zero-rating plans, for instance — an as-applied challenge to that decision could be a way to get a fuller vetting than the D.C. Circuit provided.

LOW ODDS ON REVERSAL

Schwartzman was not shy about offering up odds on an appeal, saying the chances for reversal are “close to zero.”

Given that the dissenter in the case — Judge Stephen F. Williams would have remanded the decision back to the FCC — was focused not on the agency’s power to reclassify (which the court upheld), but on how the FCC applied the law, the “core legal issue” is not in play, Schwartzman pointed out.

The only reason to seek rehearing is a tactical one to put off going to the Supreme Court until there is a ninth justice in place, Schwartzman said.

As to the Supreme Court, Schwartzman said there is no split in the circuit for it to resolve, and “it has already said that the central provision is ambiguous, and even Judge Williams agreed that the FCC has the power to reclassify. The only other issues in the case are garden variety administrative law statutory questions of no interest to the Supreme Court plus a nearly frivolous First Amendment question.”