Perkins Coie Partner: Recent FCC Cases Likely Headed to Supreme Court

Perkins Coie Partner Marc Martin, a lawyer who helps companies understand Federal Communications Commission rules, expects multiple FCC cases to go before the Supreme Court. Martin called the recent Fifth Circuit Court of Appeals decision about the Universal Service Fund (USF)—ruling 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.” At the Supreme Court, 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. On the Sixth Circuit’s temporary block on the FCC’s proposed net neutrality rules, Martin said, "I think it’s a dead man walking." Martin pointed out that, with Justice Brett 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.