Panel Selection Seen as Critical in Net Neutrality Appeal
Verizon won round one in the next stage of its fight to overturn the FCC’s net neutrality rules when the U.S. Court of Appeals for the D.C. Circuit was picked in a lottery as the court that would hear a consolidated challenge. The next key question is which panel will hear the case. Verizon hopes for review by the same judges that vacated the FCC’s order in Comcast v. FCC in April 2010, industry officials agree. In January, in a pleading filed with the court, Verizon asked that the same panel that heard the Comcast case hear its appeal.
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The makeup of the panel -- a decision likely to be revealed when a briefing schedule is issued in the next five to seven weeks -- is seen by senior lawyers as critical to whether the FCC order will be upheld. How the court decides which panel will hear a particular case has never been made clear by the circuit, though panel assignments are theoretically randomly made.
The Comcast decision was written by Judge David Tatel, who was joined in the decision by Chief Judge David Sentelle and Senior Circuit Judge Raymond Randolph. The FCC’s best chances likely lie with a panel made up mostly of judges appointed by a Democratic president -- Tatel, or Judges Merrick Garland, Judith Rogers and Harry Edwards. Tatel, Garland and Rogers were all appointed by President Bill Clinton. Edwards, a senior judge, was appointed in the last year of Jimmy Carter’s presidency.
Panel selection will make “a huge difference,” said one lawyer who follows the court closely. Judge Edwards “gives speeches all the time” saying that who hears the case on the D.C. Circuit makes little difference, the attorney said. “I respectfully disagree with that, especially on an issue like this, where it’s not like it’s raw partisanship or anything, but judges who are appointed by Republicans tend to have very sincerely held views about how reasonable it is to adopt rules like these rules and the Democrats have a different view,” the source said. “You can probably predict how favorable the panel will be based on whether a Republican or a Democrat appointed the majority of judges. It’s that simple.”
Tatel may not be a bad choice from the FCC’s perspective, the lawyer added. “He did quite a job of trying to line up all of the law on the FCC’s authority in his opinion in that case,” the lawyer said. “The FCC has gone back and, in my view, has revisited this and changed its mind as it’s allowed to and explained why it’s changing its mind and I'll bet Tatel will accept it."
A second senior lawyer who attended the Comcast argument said, “If I were Verizon I'd want that panel too … They were very skeptical about the FCC’s jurisdictional arguments.” Panel selection is critical, the source agreed. “That just happened to be those three judges. Things could change with a different set of three judges.” Tatel may not be a bad selection from the FCC’s perspective if he hears the net neutrality challenge, the lawyer said. “Tatel is not one of the [judges] that I would call kind of reflexively hostile to the FCC. He’s a very rigorous judge, but there are others who are sort of reflexively more antiregulation."
"I think the panel can make a difference, but the D.C. Circuit in general is more skeptical of federal agencies’ efforts to expand their authority and jurisdiction than other circuits,” said a longtime wireless industry lawyer.
"The panel makeup clearly matters, and Verizon already has the home court advantage being in the D.C. Circuit,” said MF Global analyst Paul Gallant. If they get a favorable panel, like the Comcast lineup, Verizon will really have the wind at their backs."
Free State Foundation President Randolph May, a former FCC associate general counsel, said the makeup of the panel may not be that important in this particular case. “It would be foolish to suggest that panel selection is completely irrelevant to the outcome, and, in this instance, you would have to say that Verizon’s chances of success are increased if it gets the same panel that heard the Comcast case,” May wrote on Friday. “That said, I think Verizon is more likely than not to win regardless of the panel drawn. Remember, the basic legal issue is one of statutory construction: Whether the commission exceeded its statutory authority in deciding to regulate Internet services? This is not a policy question likely to call forth a ‘liberal’ versus ‘conservative’ divide. Indeed, the Comcast decision was written by Judge Tatel, who has a reputation as one of the more ‘liberal’ judges."
A public interest group official and net neutrality supporter said Verizon clearly wants to have the Comcast panel hear the net neutrality review. “Getting the same panel here if they succeed will be important [for Verizon] not so much because of the politics or personalities of the individual judges, but because they have a history on this particular issue and didn’t rule favorably the last time,” the official said. Tatel may be more receptive to the FCC’s arguments on jurisdiction, but even if he accepts the commission’s explanation Verizon wins in a split decision if Williams and Sentelle don’t, he said.