FCC Got Favorable Panel for Net Neutrality Case, But Win Far from Guaranteed, Court Watchers Say

But as important as who appointed the judges is their judicial philosophy and how skeptical they are of the kinds of jurisdictional claims made by the FCC in handing down the 2010 order, said the lawyers, including several who specialize in appellate law. And the judges are bound by the court’s precedent and how they view similar cases already decided by the circuit. Several appellate attorneys speculated based on past history that Rogers would likely follow Tatel’s lead. One wrinkle is that Tatel authored the 2010 decision in Comcast v. FCC, which said the FCC doesn’t have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act.

"You have judges who defy their political label all the time,” said one appellate lawyer. “This term at the Supreme Court you had Justices [Elena] Kagan and [Antonin] Scalia joining in opinions on a bunch of cases.” But the lawyer also said Tatel and Rogers could be more sympathetic to the FCC’s arguments while Silberman is likely to be more skeptical. “The analysis isn’t just what president appointed them, but what kind of judge they've been. Rogers and Tatel have been much more deferential to the government and to agencies than has Silberman.” But the lawyer acknowledged that from the FCC’s standpoint the panel is “as good as you're going to get from the D.C. Circuit.”

The FCC already lucked out in at least one respect, said another experienced appellate lawyer: The odds were against the FCC getting two Democratic appointees. “Judges Rogers and Tatel are likely to be sympathetic to the FCC’s goals,” the attorney said. “But none of the three are particularly deferential and won’t hesitate to reverse if they think the commission lacks authority.” Tatel wrote the Comcast decision and whether he thinks the FCC’s decision is consistent with Comcast is likely to be dispositive, the lawyer said. “On the one hand, the decision in Comcast overturned an FCC decision and narrowed the scope of ancillary jurisdiction. On the other hand, it gave the FCC a roadmap that the commission tried to follow. I'll be very interested in his questioning at oral argument, which might show where the court is going."

A third top appellate lawyer said a key question is how the judges view application of the Chevron doctrine, stemming from the 1984 Supreme Court decision in Chevron U.S.A. v. Natural Resources Defense Council, which raised the broader issue of how courts should treat agency interpretations of statutes that mandate an agency to take a particular action. “Justice Scalia just wrote a fairly strong defense of Chevron [in City of Arlington v. FCC] while a Democratic administration is sitting,” the lawyer said. “To him, the doctrine is more important than who it helps politically in the next five minutes.”

"People forecasting the outcome of this case shouldn’t put too much emphasis on the composition of the panel, especially when you've got a strong and clear precedent from the D.C. Circuit in the Comcast-BitTorrent case,” said former FCC Commissioner Robert McDowell, who voted against the net neutrality order when it was before the commission in December 2010. “That’s a controlling case even for the most liberal of judges.” McDowell also noted that Tatel wrote the Comcast decision. “That says a lot right there,” he said. “I think at a minimum … it’s a 2-1 decision against the commission if not 3-0, if indeed the courts are still interested in following their own precedent."

McDowell told us the precedent in City of Arlington does not strengthen the commission’s hand. In that case, the court upheld FCC assertion of authority to hand down rules for when local governments must complete cell tower zoning decisions (CD May 21 p1). “With the Arlington case, the Supreme Court essentially said the FCC could determine its own jurisdiction where Congress’s intent is ambiguous. That’s consistent with the logical underpinnings of Chevron. The court did not say that the agency could conjure jurisdiction for itself -- or legislate -- where the statute was silent and there is no evidence of congressionally conferred authority. The statute is absolutely quiet when it comes to the matter of the regulation of Internet network management, that’s why the House voted on net neutrality legislation a few years ago. That legislation never became law, therefore the FCC did not have the authority to do what it did."

The case could be decided based on the judges’ “own theories of deference,” said Free State Foundation President Randolph May. “But I think it is more likely the court will view this case as akin to the way the Supreme Court did in the Brown & Williamson decision, the case involving the FDA’s authority to regulate cigarettes. In other words, Congress doesn’t hide elephants in mouse holes. If Congress intended the FCC to have authority to regulate the Internet, it would have said so directly."

"I don’t know that the Republican/Democrat split works that way in the judiciary,” said Public Knowledge Senior Vice President Harold Feld. “Especially with regard to older Republicans … who are now much more like centrist Democrats simply by staying in place. Scalia, for example, wrote City of Arlington and was joined by [Clarence] Thomas.” Feld said Tatel’s authorship of a December decision upholding the commission’s data roaming rules (CD Dec 5 p1) could be worth considering. “There, Tatel agreed with Verizon that the FCC is prohibited from imposing a ‘core’ common carrier regulation, but found that data roaming was not common carriage. Verizon has made the same argument here,” Feld said. “The question may well be which side of the ‘core common carrier’ line Tatel thinks the net neutrality regulations fall” on.

"The key judge on this panel is Judge Tatel, who authored both the court’s 2010 opinion vacating the FCC’s Comcast decision and its 2012 opinion affirming the FCC’s data roaming rule,” said Fred Campbell, director of the Communications Liberty & Innovation Project and former Wireless Bureau chief. “Based on his reasoning in these opinions, it’s likely that Judge Tatel will disapprove of the FCC’s net neutrality rules as written because they do not permit individualized negotiations on commercially reasonable terms."

"The usual caveats really matter -- you never know when the judges will deviate from their usual tendencies,” said communications lawyer and court watcher Andrew Schwartzman. The panel is a pretty good one for the FCC, he said, but said a case like this is especially hard to handicap: “This is an extremely close case and each of the three could easily go either way."

Silberman is quite conservative, but unlike some of the younger Republican appointees on the court, “he isn’t a bull in the china shop,” Schwartzman said. “If there is a precedent, he tends to follow it. Thus, he may well be receptive to the signals in the Supreme Court’s City of Arlington case.” Schwartzman is among those who doesn’t think it was an accident that Justice Scalia used ISPs as an example in discussing FCC authority. The FCC argued to the D.C. Circuit that, in Arlington, the Supreme Court discussed the agency’s potential authority over ISPs as its “principal example of statutory ambiguity” under which the FCC should get deference (CD May 24 p1). Tatel “clearly left the door open for the kind of decision which the FCC has now undertaken,” Schwartzman said. “Rogers is a straightforward, generally liberal judge, but she is no pushover. If she thinks the government is overreaching, she will say so.” But Schwartzman doesn’t think Tatel or Rogers will be receptive to the carriers’ First Amendment arguments, “and I doubt Judge Silberman will want to take that on either."

"This is not a great panel for the commission,” said ex-WilmerHale partner Jack Goodman, now in his own practice. The same court previously said the commission has no authority in this area, he said: Rogers has historically been “very skeptical,” and Silberman “starts out being skeptical of any federal agency.” Tatel is more “middle of the road,” but the commission will first have to show why the Comcast decision should not control, he said: “They still start a step behind.” This panel will examine the various claims very thoroughly, Goodman said. It’s not just a group of “ideological judges who will simply say no on the basis of a strong ideological belief.” There could also be worse panels for the commission, such as if they included Brett Kavanaugh or Stephen Williams, he said. But Rogers has demonstrated “impatience” with the commission’s processes before, he said, such as when she threw out the “last remnants” of the Fairness Doctrine in an opinion 13 years ago. If the commission can make a strong enough case, she'll listen, but “I don’t think they come in with a strong presumption with her in their favor,” he said. “The hill is theirs to climb."

"While it may be interesting, and sometimes fun, to speculate about outcomes, it’s just that -- speculation,” said Angela Giancarlo of Mayer Brown, former chief of staff to McDowell.

"I will say the panel is significant here because it could have been a lot worse for the FCC,” said a former FCC lawyer. “You can’t always predict how different judges are going to vote, but there are a lot of judges that if they had been on this panel … I would have said ‘definite loser’ for the FCC.”