Net Neutrality Petitions to DC Circuit Expected, Seen as Unlikely to Succeed

FCC critics face an uphill battle to convince a federal court to rehear and overturn a ruling upholding the FCC's net neutrality and broadband reclassification order, some knowledgeable sources told us Thursday. Various parties who originally challenged the order are expected to file petitions Friday for rehearing the 2-1 decision at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1063), they said. Even commission critics say the odds are against the D.C. Circuit granting rehearing, but some suggested the appellate court proceeding might improve the prospects for Supreme Court review, including on the question of Chevron deference to the agency.

TechFreedom President Berin Szoka has said his group plans to file a petition with at least one other intervenor in the case (see 1607270056). The American Cable Association, AT&T, CenturyLink, Daniel Berninger, CTIA, NCTA, USTelecom and the Wireless Internet Service Provider Association were among the original challengers to the FCC order. They didn't comment Thursday, but someone familiar with their plans said several of them are planning to file separate petitions for rehearing. CTIA is expected to be among them, said another informed source.

"There will be several separate filings," agreed Andrew Schwartzman, senior counselor at the Georgetown Law Institute for Public Representation, who supports the FCC order. He cited two reasons for parties to file separately: because of a 15-page word limit, "you get to say more," and the parties have different issues. "I assume that CTIA will focus on the mobile data question. Berin seems to be obsessed with his desire to put a stake through the heart of Chevron. USTA [USTelecom] will probably want to push the basic reclassification question," he emailed. "Rehearing is not going to be granted."

Schwartzman in June detailed the reasons he thinks the court won't rehear the case, much less overturn the panel ruling. In a blog post, he said the D.C. Circuit typically agrees to rehear a case only a few times a year, at most, and this case doesn't fit the bill, which is when "there is a sharp split on an important issue on which other circuits have taken a different stance." He also said Judge David Tatel, who co-wrote the panel's opinion, is considered "highly knowledgeable on this issue and his colleagues will be loath to second-guess him." He said the math for obtaining rehearing is "daunting," since it will take votes from six of 11 active judges to grant a petition. Chief Judge Merrick Garland is not participating while his Supreme Court nomination is pending, he noted. "Of the remaining ten, two wrote the decision and it is inconceivable they would want to agree to rehearing. So, a petitioner needs six of the eight remaining judges to vote for rehearing just to get the chance to reargue the case, much less convince them that the panel decision was wrong. That is not going to happen."

Gus Hurwitz, a critic of the FCC order, also expects a number of petitions. They're "going to circle around the general issue of whether it was appropriate for the DC Circuit panel to afford the FCC as much deference as it did," emailed Hurwitz, an assistant law professor at the University of Nebraska and a visiting scholar at American Enterprise Institute's Center for Internet, Communications, and Technology Policy. "This is really a pure administrative law issue, and it is one that the Supreme Court has shown a fair amount of interest in in recent term. There are definitely open, important issues, here, that may get the DC Circuit's attention for en banc review -- the panel majority was really exceptionally deferential to the FCC, which seems to go against the grain of recent Supreme Court concern. That said, I think it's still unlikely that the court will grant en banc review."

Another critic, Free State Foundation President Randolph May, also is pessimistic. "But I’m glad the fight is being carried forward," he emailed. "I think the prospects of prevailing in the Supreme Court may be better because this may be a case where the Court decides to cut back on the all-out Chevron deference accorded by the appeals court. Absent Chevron deference, it’s likely the FCC wouldn’t prevail on all points, and the Supreme Court may decide to employ the case to flesh out a ‘major exceptions’ doctrine, to decide not to apply strong Chevron deference to independent agencies, or to decide just to generally restrict the doctrine’s scope.”

"The real action here is positioning this case to draw the attention of the Supreme Court," Hurwitz said. "This is one of a handful of cases percolating up through the circuits that could get the attention of the Supreme Court as a vehicle for considering how thoroughly the courts need to review an agency's decision-making process before granting deference, especially where the agency's decision relates to changed or important policy questions. And, among these cases, I think this very possibly presents the Supreme Court the most interesting and compelling set of questions for eventual review. That said, the odds are always against you when it comes to getting an issue before the Supreme Court."

Schwartzman agreed the real reasons for seeking rehearing are tactical. "Sometimes a party thinks it can draw a sharp dissent that can help convince the Supreme Court to hear the case," he said in his blog post. "In this instance, there may be an additional strategic reason to seek rehearing, which is to delay taking the case to the Supreme Court until there is a ninth Justice. If a party thought that there is a better chance of getting four Justices to vote for certiorari, it might want to delay." But he told us Thursday he still considered the prospects for high court review "remote."