Major Questions Issues Could Dominate 6th Circuit Review of Net Neutrality Case

The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.

Odds are that conservative judges will dominate the panel, experts told us. Ten of the 16 full-time judges in the 6th Circuit are Republican appointees, six appointed by President Donald Trump. Two of the three motions-panel judges who stayed the order on major questions grounds (see 2408010065), Eric Clay and Stephanie Douglas, are appointees of Democratic presidents. President George W. Bush appointed the third, Chief Judge Jeffrey Sutton.

Recent SCOTUS decisions will “loom large,” said Blake Reid, associate law professor at Colorado University. The merits panel could “operate under the assumption” that SCOTUS “inevitably will pick this up,” he said. “Seeing the writing on the wall,” the panel may “look for a relatively quick way to pass it along, knowing that a protracted opinion that deals with all the intricacies likely will be washed away by whatever SCOTUS ultimately does with it.”

The temporary stay order in July asked parties for supplemental briefing on precedents and NCTA v. Brand X, a 2005 Supreme Court case that found an FCC decision about how to regulate ISPs should be given deference, Reid noted: The August order granting the stay “skips over” both, “resting instead on the major-questions doctrine.”

Regardless of the panel's composition, “the court is likely to rely on the major questions doctrine, because it is fairly implicated here,” said Daniel Lyons, professor at Boston College Law School. A decision on major questions grounds also “obviates the need for a detailed parsing of the statutory definitions, which is really difficult work.”

But the scope of the major questions test “is an open question after Loper Bright,” Lyons added. Decided in June, that case ended any reliance on the long-standing Chevron doctrine for granting federal agencies deference and appears to substantially enhance the power of judges over their decisions (see 2406280043). “I'm really curious as to where [SCOTUS] takes it in a post-Chevron world,” Lyons said, predicting that ultimately the high court will hear the net neutrality appeal.

“The major questions doctrine absolutely should and will be a large part of the court's review,” predicted former FCC Commissioner Mike O’Rielly, who filed an amicus brief in the case (see 2408230040). That’s “why I focused on the FCC's lack of congressional authority in my amicus and why I suspect the FCC is behind the eight-ball.”

Others say a likely decision is less clear-cut.

“Appellate judges often have clear political and philosophical perspectives, and the overall makeup of the 6th Circuit is unquestionably center-right,” acknowledged Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society, but he warned against an “inevitable tendency to try to psychoanalyze the judges that will hear an appellate case.” Judges are bound by precedent, he said: “Here, where the precedents are new and there is no case law implementing the recent precedent, it is folly to try to speculate too much about how the case will play out.”

The FCC, emailed Public Knowledge Legal Director John Bergmayer, “can win under the interpretation of the law accepted by that case, applied to the different facts of how broadband is offered today.” To some extent, the 6th Circuit stay order “simply seems to disagree with the FCC's fact-finding, even though that is an area where agencies are still supposed to receive deference post-Loper-Bright,” he said. Apart from the Brand X decision, “the plain language of the Communications Act favors broadband being ‘telecommunications’ as well.”

Bergmayer said different judges’ views on administrative law issues “and how far judges should go into policymaking, which is what a lot of these cases amount to, does not always neatly track by party.”

The motions panel “got it right that whether ... the FCC can regulate ISPs as public utilities is a Major Question and Congress hasn’t clearly authorized the commission to do so,” emailed Randolph May, president of the Free State Foundation: Administrative law “has undergone a paradigm shift since the FCC’s last Title II determination was upheld by the D. C. Circuit, so regardless of the panel composition, the handwriting is on the wall that the FCC is likely to lose.”

American University administrative law professor Jeffrey Lubbers said that because the case appears headed to SCOTUS it could mean 6th Circuit judges will dive deep into precedent in an attempt to influence SCOTUS “as much as possible.”

"The odds," said New Street’s Blair Levin, "favor the ISPs winning," and he questioned whether SCOTUS will eventually take the case, since there won't be a split in the circuits and SCOTUS’ conservative majority will likely agree with the outcome in the lower court.