With a huge cable-modem litigation decision pending, Attorney General John Ashcroft has named Paul Clement as acting U.S. Solicitor General, a position with significant influence over the cases accepted by the U.S. Supreme Court.
As principal Deputy Solicitor General, Clement automatically became acting Solicitor General last Friday, the effective resignation date of Solicitor General Theodore Olson, who elected to rejoin his old Washington, D.C., law firm.
Clement has until July 29 to decide what Comcast Corp. chairman and CEO Brian Roberts has publicly declared to be cable’s most important regulatory issue: the status of cable-modem service.
Reversing the Federal Communications Commission, a panel of the U.S. Court of Appeals for the 9th Circuit declared last October that cable-modem service is partly a telecommunications service. That ruling might require cable companies to sell wholesale broadband access to EarthLink Inc. and other competing Internet-service providers, an open access mandate cable has fought since 1998, when then-America Online Inc. CEO Steve Case first raised the issue.
Clement’s support is considered critical in improving the odds that the high court will take the case. The Supreme Court receives thousands of appeals each year, but agrees to docket between 80 and 110 cases in a year.
The National Cable & Telecommunications Association is planning to file an appeal with the high court, regardless of Clement’s decision.
An FCC source last week said the Justice Department was leaning toward seeking Supreme Court review.
Clement is facing pressure from the Justice Department’s Criminal Division, which wants to preserve the telecommunications-service classification to avoid any diminution in its wiretapping authority under the Communications Assistance for Law Enforcement Act of 1994 (commonly known as CALEA).
In his decision, Clement has to weigh competing goals within the Bush administration — the continued rollout of broadband facilities and services against law enforcement’s stated need to prevent another Sept. 11, 2001-type attack on the United States.
The FCC held that cable-modem service is an interstate information service. Justice Department lawyers argue that under CALEA they have no authority to order information service providers to spend the money to install wiretapping equipment that can track criminal activity on a real-time basis.
CLERKED FOR SCALIA
According to a Justice Department biography, Clement was named principal Deputy Solicitor General in February 2001, when he was 34 years old.
In 1993, he served as a law clerk to Supreme Court Justice Antonin Scalia. To the extent it matters, Scalia has routinely criticized 9th Circuit rulings and has tended to support the FCC when it invokes its “expert agency” defense in crafting rules designed to fill gaps in telecommunications law.
In 1992, Clement was also a clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.
Clement received his undergraduate degree from Georgetown University in 1988, his master’s degree from Cambridge University in 1989, and a law degree from Harvard Law School in 1992, according to the Justice Department.