Net Neutrality Appeal Unlikely to Advance, Observers Say

The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...

By Kyle Daly

Aug. 2 — The chances for further review of a federal appeals court decision upholding the Federal Communications Commission's net neutrality rules are slim, according to tech policy insiders on both sides of the issue.

Telecommunications trade groups representing AT&T Inc., Verizon Communications Inc., Comcast Corp. and CenturyLink Inc. want the full U.S. Court of Appeals for the District of Columbia Circuit to review a June three-judge panel ruling in the FCC's favor (2016 TLN ???, 9/1/16).

The D.C. Circuit panel ruled against an industry challenge to the FCC's 2015 move to reclassify broadband internet providers under a more stringent regulatory regime and establish net neutrality rules restricting how the providers are allowed to handle data moving on their networks.

It's now up to the 11-member court to decide if it will review the ruling; if it doesn't, or if it does but agrees with the lower panel, the industry's next and final chance at getting a court to overturn the rules will be at the U.S. Supreme Court.

If neither the full D.C. Circuit nor the Supreme Court takes the case, the broadband providers will have to live under the rules unless Congress or a future FCC rolls them back. That is unlikely unless Republicans are able to take the White House and keep control of the House and Senate in November. The net neutrality rules have increased Republicans' appetite to rewrite federal communications law, with or without provisions addressing net neutrality (2016 TLN 10, 7/1/16).

The Odds of Review

It's unlikely that either the full D.C. Circuit or the Supreme Court will hear the case ( U.S. Telecom Ass'n v. FCC, D.C. Cir., order 6/14/2016), several tech policy insiders said during an Aug. 2 panel discussion in Washington, D.C., hosted by free market policy think tank Tech Freedom.

“The policy issues at stake here are important and complicated. The legal question isn't,” said Kevin Russell, an attorney with Goldstein & Russell who argued in favor of the rules before the three-judge D.C. Circuit panel. “This case involves a straightforward application of administrative law principles that recognize that judges are not economists and are much less well-suited in deciding which policies are good or bad for the internet than are the folks at an expert agency like the FCC.”

Russell and Sarah Morris, director of open internet policy at New America Foundation, both said they don't see the two courts thinking differently: Russell dismissed the notion that the full D.C. Circuit might take the case and gave the Supreme Court a 5 percent chance of doing so, while Morris simply said it's “highly unlikely” the case will be heard again.

Tech Freedom President Berin Szoka and Gus Hurwitz, assistant professor at Nebraska College of Law, both of whom oppose the FCC's rules, agreed that the full D.C. Circuit is likely a non-starter.

A majority of the court's 11 active judges would have to agree to take the case. That likely wouldn't include D.C. Circuit Chief Judge Merrick Garland, who, Hurwitz noted, has been following precedent and recusing himself from cases brought before the court while his nomination to the Supreme Court remains pending. Two of the other active judges, David Tatel and Sri Srinivasan, voted to uphold the agency's rules. The third panel judge, Stephen F. Williams, has senior status and won't be part of the full court decision.

In their petitions for full court review, the telecom groups said the panel ignored violations of administrative law the groups claim the FCC made in arriving at its net neutrality rules, among other concerns.

Supreme Court Outlook

Szoka is hopeful the Supreme Court will hear the case eventually. He said it would be a chance for the high court to substantially review, for the first time in decades, the role of administrative agencies in interpreting their own statutory authority for the first time.

Hurwitz had similar hopes but said the Supreme Court agrees to hear a low percentage of the cases it is asked to hear. He gave the case a 15 percent chance of making it that far.

Szoka said the D.C. Circuit's decision to take the case or not could drag on for a year or more, even if it opts not to take it, if any judges are preparing dissents. The Supreme Court has no timetable for deciding if it will hear the case, he said.

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

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.