Net Neutrality Litigants Seen Facing Difficult Decisions on Possible Stay Bid, Venue Choice
Legal challengers to FCC net neutrality deregulation face some tough tactical calls, including whether to seek a court stay and their preferred circuit venue, attorneys told us. It's tempting to seek a stay that would block the "internet freedom" order from taking effect while the case is heard on the merits, but such a request must clear a high bar and the prospects for success are dim, several said. On the venue, the calculus is complicated, given the past open internet rulings of the U.S. Court of Appeals for the D.C. Circuit, the attorneys said. The Republican-majority FCC commissioners voted 3-2 along party lines Dec. 14 to jettison Title II net neutrality regulation under the Communications Act (see 1712140039).
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Some consumer groups and state attorneys general plan legal challenges, and internet players and others could join the litigation. In a Dec. 14 appearance on MSNBC's All in With Chris Hayes, New York AG Eric Schneiderman said he will challenge the FCC decisions and seek to "stay" their implementation, but it wasn't clear if he was referring to a stay pending further judicial review, or a permanent injunction on the merits. A spokeswoman declined to clarify, or to discuss the possible court venue. FCC orders can be challenged in the D.C. Circuit, or in other circuits where parties have standing. New York is in the 2nd Circuit.
The potential litigants aren't discussing their tactical plans publicly. "We’re still in active conversations internally and with other potential challengers on these issues. We can’t and won’t be able to share decisions on these questions before they are made or perhaps even before we file,” emailed Matt Wood, Free Press policy director. "All of these considerations are under discussion among the likely public interest and company parties, and ... no decisions have been made," emailed Michael Calabrese, director of the Wireless Future Project at New America's Open Technology Institute. He said OTI is "very confident" the FCC order is "fatally flawed" but "it's a bit premature to talk about litigation strategy." Lisa Hayes, general counsel of the Center for Democracy & Technology, wouldn't comment on litigation strategy but said: "I am optimistic that the courts will find the new order is arbitrary and capricious."
Backers of the FCC Title II repeal and some others believe the critics have an uphill battle in their challenges (see 1712210012) and would have to scale a legal peak to secure a stay. "They'll lose," TechFreedom President Berin Szoka said about critics' chances for a stay. Tech Knowledge Director Fred Campbell called it "very unlikely" a stay motion would succeed, given the Supreme Court's Brand X and Chevron precedents, which recognized FCC authority to classify broadband as a lightly regulated Title I information service and defer to reasonable agency decisions on ambiguous statutes. Stuart Brotman, University of Tennessee law professor, said it's "highly unlikely" a stay would be granted, and Christopher Yoo, University of Pennsylvania Chestnut law professor, called it "extremely unlikely," given the "more stringent" standards for such a preliminary injunction.
Stay movants must show a likelihood or strong possibility of winning on the merits plus near-term irreparable harm, absent the relief. "It's a very high bar, so advocates are going to think long and hard about whether they can meet that bar," said one Title II net neutrality supporter, who added whether a stay is sought or not "in no way presages the outcome" on the merits. The order eliminating net neutrality regulations won't take effect for months as the Office of Management and Budget reviews a transparency rule, FCC officials said.
The court venue issue is particularly tricky, attorneys said. Although the D.C. Circuit -- both a three-judge panel and the broader court en banc -- twice upheld the previous FCC's Title II net neutrality order in USTelecom, the deference it granted the agency should play to the current commission's advantage, attorneys said. "The D.C. Circuit might be attractive [to challengers] because the previous decision survived en banc review there and the judges in the [USTelecom] majority might be inclined to defend their previous decision," said Campbell. "The same could be said of the dissenting judges in the en banc review, which might make a clean slate in another venue more attractive." Critics of the current FCC's deregulatory wireline broadband infrastructure order recently filed challenges in the 9th Circuit, which is traditionally seen as the most liberal-leaning court (see 1712080057).
Various parties could feel "most comfortable in the D.C. Circuit, because that’s where there is the most binding precedent," Yoo said, but he said challenges could be filed elsewhere. "It is a very close call." The factors are "very mixed," making the venue decision "a difficult calculus," agreed Open Society Foundations Fellow Gigi Sohn, a former aide to previous FCC Chairman Tom Wheeler. She said calculations are further complicated by the possibility some broadband ISPs "or their surrogates" will challenge the transparency rule in a venue they believe is favorable to their cause. If timely filings are made in multiple circuits, a court lottery determines venue.
"I expect the case will ultimately be heard in the DC Circuit," emailed Gus Hurwitz, a University of Nebraska law professor who backed the FCC's Title I reclassification. "Even if the litigation is initially filed in another circuit, the DC Circuit has heard all of the prior challenges and it is hard to imagine the FCC not successfully seeking to transfer it to the DC Circuit." While "other Circuits may be slightly more favorable," the D.C. Circuit's "a known quantity and likely to side with the Commission in this case," he added. "If petitioners choose to file elsewhere it will be because they perceive an advantage in challenging the FCC in some other Circuit, in which case it would make sense for the Commission to bring it back to the DC Circuit."
Szoka said it would be "pretty easy" to get the case transferred to the D.C. Circuit if another court gets it. He said the argument for the D.C. Circuit hearing the case would become even stronger if the Supreme Court remands the pending appeals of the previous Title II order, as he believes is likely in light of the recent FCC reversal. The high court last week granted an FCC/DOJ motion to extend the response deadline in that litigation until Feb. 2. The legal landscape for the new FCC order is complex, but "at the end of the day, it's more likely than not, [the coming case] is going to end up here" at the D.C. Circuit, said Morgan Lewis attorney Andrew Lipman.
Campbell doesn't believe the venue will ultimately matter. "Whichever court hears the case is likely to uphold the FCC decision," he predicted, citing the Supreme Court precedents.