D.C. Circuit's Pace on Net Neutrality Case is Norm

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May 13 — A federal appeals court has been mulling a high-stakes legal challenge to the Federal Communications Commission's net neutrality rules for months, leaving the communications sector waiting and wondering about when the court will finally hand down its decision.

The U.S. Court of Appeals for the District of Columbia Circuit is taking longer with the case than when it considered either of two prior challenges to the agency's earlier net neutrality efforts, and the anticipation among observers is growing steadily. But legal experts told Bloomberg BNA that what might feel like a delay in the much-anticipated ruling is more like standard operating procedure.

“The one difference here from other complex cases is that there’s an entire ecosystem of lawyers, telecommunications policy analysts, investment analysts and reporters who are obsessively refreshing their screens every Tuesday [and] Friday morning at 10 a.m.,” said Andrew J. Schwartzman, senior counselor at the Georgetown University Law Center Institute for Public Representation in Washington, referring to the days and times each week at which the telecom world tunes in to the D.C. Circuit to watch for an opinion.

A three-judge panel heard oral argument in the case Dec. 4, 2015 (U.S. Telecom Ass'n v. FCC, D.C. Cir., No. 15-01063, oral arguments heard 12/4/15). Broadband providers are challenging the FCC's claim of authority to reclassify fixed and mobile broadband as a telecommunications service under Title II of the Communications Act of 1934. (2016 TLN 15, 1/1/16)

The FCC asserted that authority in February 2015 by approving net neutrality rules prohibiting broadband providers from throttling or blocking legal Internet traffic and from offering paid prioritization, a network framework allowing content companies to pay Internet service providers for higher-priority delivery to consumers.

After the oral argument, industry observers told Bloomberg BNA that they expected the court to issue a decision by March or April, or possibly as early as February. The forecasts aligned roughly with the intervals between argument and opinion in two previous cases that saw FCC net neutrality policies largely struck down.

The court ruled against the FCC 89 days after oral argument in a 2010 case initiated by Comcast Corp. after the FCC attempted action against it for blocking peer-to-peer BitTorrent traffic. It vacated the bulk of the FCC's 2010 Open Internet order, the agency's first attempt at formal net neutrality rules, in a February 2014 ruling, 128 days after oral argument in a challenge brought by Verizon Communications Inc.

As of May 13, 162 days had elapsed since oral arguments in the current case. For denizens of the world of technology and telecommunications policy, that means the decision is long overdue.

Several legal experts, however, told Bloomberg BNA that court watchers shouldn't read too much into the timing.

Records kept by the Administrative Office of the U.S. Courts suggest the pace of the case may be within normal bounds. In the 12 months ending Sept. 30, 2015, the most recent period for which records where available, the D.C. Circuit took a median time of 108 days to reach a decision following oral arguments in civil appeals. 

Aaron Saiger, a professor at Fordham University's School of Law as well as a former clerk for D.C. Circuit Judge Douglas H. Ginsburg, told Bloomberg BNA that the time the court has taken so far is “not outrageously long.” Saiger and another former D.C. Circuit clerk, who spoke on condition of anonymity, both said it wouldn't be unusual for the case to stretch into the summer. The case would only become a real outlier, they said, if it weren't decided before August, when a new rotation of law clerks comes in.

Experts caution against reading too much into a comparison of the current case timeline with the earlier net neutrality cases. They said there could be several factors that have nothing to do with how convincing the court finds the arguments of one side or another. Among the possible factors: The sheer complexity of the case; the judges carefully evaluating every issue raised in order to build a robust record—under the expectation that whoever loses will probably try to bring the case to the Supreme Court—or even that the judges and their clerks consider other cases to be higher priorities.

It is possible, both Schartzman and Saiger acknowledged, that one judge is holding things up because a dissent isn't finished.

Russell Wheeler, a judicial systems expert at the Brookings Institution, told Bloomberg BNA that court watchers may be making too much of the contrast with the last two net neutrality cases.

“It could be that the earlier two cases were the aberrations in being settled more quickly,” Wheeler said.

“I keep on telling everybody, relax,” said Schwartzman. “It’s going to come when it comes. These judges have lifetime tenure; they don’t really have to account to anyone. And they’ll take as long as they take.”

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com