FCC Critics Doubt DC Circuit Net Neutrality Rehearing, More Hopeful on Supreme Court
A federal court is unlikely to rehear a panel ruling that sided with the FCC on its net neutrality and broadband reclassification order, even critics of the order said Tuesday at a discussion held by TechFreedom, New America's Open Technology Institute (OTI) and the George Washington Institute of Public Policy. Some critics said they thought the chances the Supreme Court would review the case were better, though none of them called it likely, and a supporter of the commission order put the odds at just above 5 percent. Various petitioners have asked the U.S. Court of Appeals for the D.C. Circuit to rehear the 2-1 decision by a panel upholding its order establishing net neutrality rules and reclassifying broadband internet access as a telecom service subject to common carrier regulation under Title II of the Communications Act (see 1607290052).
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En banc review by the D.C. Circuit is "rarely granted," said Gus Hurwitz, a University of Nebraska law professor and critic of the order. There's a better chance than usual in this case due to some "really cool administrative law data," but rehearing is still "unlikely," he said. TechFreedom President Berin Szoka acknowledged the difficulty of winning rehearing, particularly given the D.C. Circuit shift from right to left under President Barack Obama, who has made several appointments to the court. Szoka noted petitioners, including TechFreedom and other intervenors, must convince six out of 10 "active judges" reviewing cases for rehearing to be granted, and six of those judges are Democratic appointees, including the two who wrote the majority opinion in the panel ruling (USTelecom v. FCC, No. 15-1063) (see 1606140023).
Szoka said he is optimistic the petitions would at least spark some dissents that could help convince the Supreme Court to take the case. Hurwitz said the chances of Supreme Court review are "always low," but he said the net neutrality case was the "most compelling" of four cases working their way through the circuit courts that raised "interesting questions" about how much Chevron deference the courts should give agency decisions.
The Supreme Court doesn't take cases because they're "interesting," countered attorney Kevin Russell of Goldstein and Russell, who has represented intervenors supporting the FCC order. He said about three-quarters of the court's cases are to resolve circuit splits, and there hasn't been any credible suggestion yet of such a split here. The Supreme Court does decide a "handful" of cases because they're important and petitioners make credible arguments they were wrongly decided, he suggested.
But Russell said the current FCC litigation would be a "terrible case" for justices to take because the Supreme Court already decided in 2005's Brand X ruling that the Communications Act is ambiguous on the question of broadband classification, which he said is a highly technical matter better left to the expert agency. He said Chevron critics would have a better chance on a case that's not so technical. Ordinarily, he said the odds of getting Supreme Court review on an agency decision are about 5 percent, though they might be a little higher in this case.
Hurwitz said he put odds of Supreme Court review at 15 percent. He said he believes the FCC and the D.C. Circuit panel interpretation of Brand X is wrong, and thinks justices from the majority on that ruling still on the court would agree. He also said there have been a series of Supreme Court decisions aimed at ensuring Chevron deference isn't unlimited. Hal Singer, principal at Economists Inc., cited King v. Burwell as one such case, in which the Supreme Court called attention to issues of major economic significance. He said a drop in the capital expenditures of major broadband ISPs over the past year seemed to raise such issues.
Szoka agreed that the "real" legal issue is about how much deference courts should accord the FCC and other agencies. He said he believes the odds of high court review are "a lot higher" than 15 percent, particularly if there are more D.C. Circuit dissents, but he said he couldn't specify an exact percentage.
Appeal paths at both the D.C. Circuit and Supreme Court are "narrow," said OTI Senior Counsel Sarah Morris. She said it's "highly unlikely" either court would hear the case, and petitioners also would have to convince the D.C. Circuit or Supreme Court to overturn the panel ruling. In all likelihood, she said, net neutrality policy had effectively been settled by the panel ruling.
The FCC critics said net neutrality supporters shouldn't be so sanguine about the status quo, which they called "vulnerable." If Republican candidate Donald Trump wins the presidency, it would lead to a GOP-run FCC, which could overturn the current Title II broadband reclassification, they said. That would undermine the authority for the current net neutrality rules, which include a blanket ban on paid prioritization, they said.
Szoka said the panel's deference to FCC reclassification and extensive forbearance from telecom regulation could be used by a future commission to either scrap the current framework or extend regulation to edge providers, which internet intervenors on his side are concerned about. "This is not a stable foundation for regulating the internet. It will have unintended consequences," he said. The courts or Congress should intervene, he said.