D.C. Circuit Review – Reviewed: “FCC Day” in the D.C. Circuit

by Aaron Nielson — Friday, Feb. 1, 2019@Aaron_L_Nielson

This was a quiet week in the D.C. Circuit — that is, unless you follow the FCC. If you are an FCC aficionado, today is a very big day. So big, in fact, that the Court issued special instructions, including:

And some more:

Yes, today is the “net neutrality” argument at the D.C. Circuit. This is a topic we have covered a lot here at Notice & Comment. I’ve not listened to the argument yet.* But I imagine that many, many lawyers were listening — or at least will listen — to the audio.

There is another reason, moreover, that today is “FCC Day” in the D.C. Circuit. The Court issued a decision in National Lifeline Association v. FCC. Judge Rogers (joined by Judges Griffith and Randolph) vacated the agency’s efforts to change the Tribal Lifeline program (which provides discounts on certain telecommunications services for those living on Tribal lands). Here is a good summary of the decision:

As you can see from that summary, this decision has relevance beyond the FCC context. This is both a State Farm (which the Court cites five times by name) case and a logical outgrowth case. The Court also addresses how long comment periods must be: “When substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.” Interesting.

And with that, we can start waiting for the Court’s latest net neutrality decision. Warning: It may take a while.

 

* I had hoped to attend. It’s been a while since I visited the Court in person. Alas, it didn’t happen.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

Leave a Reply

Your email address will not be published. Required fields are marked *