Tatel Seen as Key Judge as D.C. Circuit Takes Up Net Neutrality Appeal

The three judges named Tuesday to hear the case are Tatel, who was nominated by President Bill Clinton; Sri Srinivasan, a deputy solicitor general nominated to the court by Barack Obama; and Senior Judge Stephen Williams, nominated by Ronald Reagan. Oral argument is scheduled for Dec. 4 (see 1510270068). Tatel wrote some key decisions on FCC rules, including Verizon v. FCC, a 2014 ruling that overturned parts of the 2010 net neutrality order, Comcast v. FCC, a 2010 decision saying the FCC doesn't have ancillary jurisdiction over Comcast's Internet service under Title I of the Communications Act, and Cellco Partnership v. FCC, a 2012 case upholding the FCC’s data roaming rules.

Pennsylvania Law School professor Christopher Yoo said that Tatel, as the senior active judge assigned to the case, is almost certain to write the opinion. “There are very few indications in the prior decisions as to what Judge Tatel will do in this case,” Yoo told us. Yoo said he knows Srinivasan well and he is seen as a “lawyer’s lawyer” who argued many cases before appellate courts before he took the bench. Srinivasan will “take each case one at a time and judge it on its merits,” he said. “For a technical issue of statutory construction and administrative law, I think he will interpret the law fairly.”

Yoo, unlike some others, doesn't think the case is likely to eventually wind up in the Supreme Court. “The Supreme Court doesn’t take cases, they take issues,” he said. In general, the high court these days is mostly taking cases that resolve circuit splits, he said. “This case will not come up on a circuit split.” Just being a high-profile case doesn’t guarantee review, he said. The Supreme Court is also taking fewer cases each year, said Yoo, a former Supreme Court clerk.

“Tatel will control the pen” and he will have a reliable second vote in Srinivasan, predicted a former FCC official who represents telecom clients. “Tatel has shown a propensity for modifying, rather than outright vacating, FCC orders,” the former official said. “He may be poised to let the FCC win in part and lose in part. Williams' expected dissent is crucial” as it will “pave the way” for possible Supreme Court review, the former official said.

Tatel has emerged as the court's “resident expert” on FCC Internet policy, “so it's a good guess that he'll write this one as well if he's in the majority,” said Daniel Lyons, associate professor at Boston College Law School. The FCC strayed from the guidance in the earlier decision in Verizon, he said. While the FCC initially proposed a lighter touch, the final order reclassified broadband as a common-carrier service, Lyons noted. “Judge Tatel did seem to leave this option open for the agency as well -- the Verizon opinion couched its holding in terms of the natural consequences of the FCC's earlier decision to classify broadband under Title I, which suggests that reclassification would alleviate the specific problems in Comcast and Verizon,” he said. “While the Comcast decision was openly critical of the FCC's efforts to regulate in this area, Cellco and Verizon show a court struggling with how to fit the FCC's ambitions into the Communications Act's confines.”

FCC Has Edge

"The FCC probably holds the edge going into this case,” said Paul Gallant, analyst at Guggenheim Partners. “On paper, a Democrat-controlled panel isn't a great draw for ISPs. But if things were decided on paper, the Dodgers would be in the World Series."

"I'd say the panel, overall, is not one that confers a particular advantage to either side,” said Paul Glenchur, analyst at Potomac Research Group. “This is probably a panel that appellants and the government can view as giving them a fair shot.”

“Williams is a major conservative and almost certainly a no vote,” said Harold Feld, senior vice president at Public Knowledge, which backs the FCC order. “Srinivasan, by contrast, is an Obama appointee who has generally been deferential to agencies. That leaves Tatel, who is likely to be author of the decision. Which brings us to the question of whether Tatel's previous decision in Verizon v. FCC was, as many of us interpreted, a ‘road map’ for the FCC to go either with Title II or junk non-discrimination.” Feld predicted the FCC stands a decent chance of winning in court.

Former FCC Chairman Reed Hundt, who filed a brief with others defending the order against a First Amendment challenge, said FCC General Counsel Jonathan Sallet “got what he wanted.” It “should be a fierce and fair fight,” Hundt said. Former Commissioner Harold Furchtgott-Roth, who joined a brief backing a challenge on speech grounds, said communications shouldn't be a partisan issue. “I have every confidence in each of the judges on the D.C. Circuit,” he said.

Tatel’s opinion in the Verizon case gave the FCC the opportunity to act as a referee in broadband disputes without reclassifying broadband, said Fred Campbell, executive director of the Center for Boundless Innovation in Technology, which backed petitioners. “If the FCC had followed this path, I expect the current case would be an easy win for the FCC." But the FCC’s decision to reclassify completely ignored the path to legal sustainability outlined by Tatel in the data-roaming and Verizon cases, "while raising a host of new statutory and constitutional issues," Campbell said. "That the FCC decided to go in an entirely different direction at the last minute with no notice or respect for contrary precedent does not bode well for the agency on appeal."

Free State Foundation President Randolph May said it seems likely the FCC will lose. "There are so many different ways the FCC might lose that I think the decision will be sent back to the commission for one reason or another, probably in a 2-1 decision, with Judge Williams voting against the agency, along with one of his colleagues,” he said. May said it's hard to predict which one will join Williams. “I predict the case will go on to the Supreme Court, where again there will be a split decision holding the FCC acted unlawfully in one way or another,” he said. “There is a good chance the court will use the occasion to narrow the reach of the Chevron decision." The Chevron doctrine controls the high court’s approach on courts giving deference to agency rulings.

Law Is the Law

"If people think they can line up the judges in advance based on who appointed them or what their politics are, I think that's a mistake,” said Free Press Policy Director Matt Wood. “The law is the law, and it's there for all who actually want to read it.”

Ed Black, president of the Computer and Communications Industry Association, which filed an amicus brief supporting the FCC, said this panel should be able to cut through questionable claims of net neutrality critics, like the notion that net neutrality hurts investment. “I’m optimistic both because of the merits of the arguments and the quality of the judges,” he said.

Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, said Tatel is seen as a “genius” with tremendous recall. “The way I read the Verizon decision, [Tatel] thought the FCC was quite right in identifying a problem and solutions, and he upheld their reasoning that the rules made sense, but he clearly considered the rules were beyond the scope of the FCC’s powers under Title I of the Communications Act," Schwartzman said. Predicting how the three judges will rule is difficult, he said. “These judges are totally independent, and while they have clear philosophies, they will do a rigorous review,” he said. “You just never know."

The initial net neutrality NPRM “repeatedly stated” that the commission was following the court's "blueprint" in proposing rules that wouldn't cross over into de facto common carriage regulation, said Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation. “Tatel has developed this distinction through the Comcast, Cellco and Verizon decisions and it should be fun to see what he makes of the commission's decision to eschew his blueprint.”

Classifying broadband as a Title II service “avoids the question of whether particular regulatory treatment amounts to common carriage, but even here the commission did not really follow Tatel's reasoning,” Brake said. “The Verizon decision is clear that it is concerned with the relationship between edge providers and carriers, not between carriers and the end user,” he said. “The ironic point is that most everyone agrees that classifying the relationship between edge providers and operators would be a bad idea. This will be a key point to watch in the oral arguments.”

“Tatel is unpredictable -- but that cuts both ways,” said net neutrality opponent Berin Szoka, president of TechFreedom. “I don't think the FCC can count on him any more than we can. He's famous for trying to skin the cat in idiosyncratic ways.” Williams seems likely to vote against the FCC, Szoka said. Szoka said Williams thinks the case will boil down to the question asked in his group’s brief in the case: “Is Chevron deference appropriate?” he said. “We think not, for all the reasons we explain there. In particular, our argument relies heavily on the non-delegation doctrine.”

NetCompetition Chairman Scott Cleland said Tatel is obviously the key. "Tatel has been tough on the FCC twice, but the last time he was very friendly" on its authority under Section 706, Cleland said. “The court will respect the law. I expect the court to play it straight, and if they do, the FCC is in trouble," he said. "The FCC has serious legal vulnerabilities -- their foundation is built on sand. The FCC’s problem is it has to run the table: the plaintiffs have to prove just one of their many strong anti-Title II arguments." Cleland predicted the case "is going to the Supreme Court."