Net Neutrality Case Taking Shape, But Judge Selection is Key

Initial briefs from the telco/cable petitioners are due July 30, with the response from the FCC and Department of Justice due Sept. 14, reply briefs from petitioners due Oct. 5 and final briefs incorporating an appendix due on Oct. 13, under the D.C. Circuit's June 29 order establishing the briefing schedule and format in the case of USTelecom v. FCC, No. 15-1063 (see 1506290029). Oral argument typically isn't until at least 45 days after briefing closes, according to the court's procedural handbook. In this case, the 45th day is Nov. 27, Thanksgiving Friday, so oral argument could come in early December or January. A court ruling would be likely about three months after that, said Miguel Estrada, outside counsel for NCTA, one of the petitioners. The schedule closely tracked the timetable jointly proposed by industry petitioners after consulting with the FCC, DOJ and others.

But the court altered the briefing format the main cable and telco groups proposed, which envisioned one brief filed by CTIA, representing mobile broadband providers, and another one filed by fixed broadband providers -- the American Cable Association, AT&T, CenturyLink, NCTA, USTelecom and Wireless Internet Service Providers Association -- due to a wrinkle differentiating their positions. CTIA backs the fixed providers in most of their arguments against the FCC's broadband reclassification as a telecom service under Title II of the Communications Act, subject to common carrier regulation. But CTIA believes mobile broadband should be exempt from common carrier regulations even if fixed broadband were subject to those duties, while others, including NCTA and CenturyLink, argue that if fixed broadband were subject to common carrier regulations, mobile broadband should be as well.

Despite that, the court ordered CTIA to join with the fixed providers in one consolidated brief, with a 20,000-word limit for the initial brief, which is fewer than the 28,000 words the groups proposed for their two briefs in aggregate. Andrew Schwartzman, the Benton senior counselor at Georgetown Law School who backs the FCC order, called the decision a "major slapdown" of the broadband providers. CTIA had no comment to us, but an attorney involved in the proceeding, said it was "not a big deal." The D.C. Circuit has a very strong preference for consolidated briefing, the attorney said, and the fixed and mobile providers agree on most of the issues. The consolidated brief will contain one part where the parties will note their differences, the attorney said. "You could argue that having one consolidated brief makes our case stronger," the attorney added.

The attorney also suggested the 20,000-word limit wasn't a big problem for petitioners: "It really doesn't matter." The court also reduced the word limits proposed for most of the other briefs, including the joint FCC/DOJ response, which instead of 48,000 words was limited to 33,000 on its initial brief. That's the same number of words collectively allocated to all the petitioners, which includes two other groups of petitioners allotted 13,000 words total. But the court set a limit of 15,000 words for the brief by a bevy of intervenors supporting the FCC's net neutrality order and broadband classification, which was more than the 8,750 words proposed by petitioners. Those intervenors include Cogent, Comptel, Dish, Free Press, Kickstarter, Level 3, New America's Open Technology Institute, Netflix, Public Knowledge, Tumblr and Vonage.

Petitioners wanted higher word limits to accommodate all the arguments they intend to make against the FCC's order. The parties had noted some of their arguments in their initial court filings and some of them expanded on those arguments in unsuccessfully seeking a judicial stay pending further review (see 1506110048), but they were required by the court to spell out their arguments to support their joint briefing proposal. Fixed broadband providers intend to argue the FCC's broadband reclassification is contrary to the plain text and any reasonable reading of the statute, departs from prior precedent without adequate explanation and was adopted without sufficient administrative notice. They also intend to challenge: the FCC's net neutrality rules against Internet blocking, throttling and paid prioritization as impermissibly imposing common carrier regulation; the Title II extension to Internet interconnection, regardless of the broadband reclassification; and the FCC's Internet conduct standard and clarifications of its 2010 transparency rules.

CTIA intends to argue the Title II reclassification of mobile broadband is "doubly" wrong due to prior FCC conclusions that mobile broadband was both a Title I information service and a private mobile radio service. The competitive, investment and operational dynamics of mobile broadband, CTIA says, differentiate it from fixed broadband. CTIA also intends to argue the FCC was independently barred from applying Title II to mobile broadband because Section 332 of the act prohibits common carrier regulation of private mobile radio service and the agency "unreasonably reclassified mobile broadband as a commercial mobile radio service or its functional equivalent," given the logic of the order and mobile broadband dynamics.

Separately, Alamo Broadband, a small broadband provider, and Daniel Berninger, an Internet entrepreneur, intend to argue the FCC's net neutrality rules violate the First Amendment's protections. They also intend to challenge the FCC's Section 706 authority to impose any of the net neutrality rules and its authority under Section 201(b) or Title III of the Act to impose the paid prioritization prohibition.

Telco/cable rivals intend to challenge the FCC forbearance decision relieving the broadband providers of much of Title II regulation. Full Service Network, Sage Telecom, Telescape Communications and TruConnect Mobile believe the FCC was compelled by the statute to reclassify broadband under Title II and doesn't have alternative Section 706 authority or Title I ancillary authority to enforce that section. They also intend to argue the FCC unlawfully failed to apply numerous Title II provisions to broadband, including Sections 251 and 252, which govern federal and state oversight of local telecom competition and interconnection.

The three-judge panel that will decide the case on its merits won't be made public until 30 days before oral argument, according to the D.C. Circuit's handbook. Judges David Tatel and Janice Rogers Brown, who issued the briefing order, were presumably part of a "special" panel handling motions, not the "merits" panel, attorneys told us. Schwartzman said there's little reason to expect that Tatel and Brown will end up on the merits panel just because they were on the special panel, though it's still possible they could, since judges are generally chosen at random subject to availability, according to various court watchers and D.C. Circuit Judge Patricia Millett, who recently spoke on court matters (see 1506160025).

That Tatel and Brown decided the briefing schedule suggests that a previous three-judge special panel that denied the telco/cable stay request probably won't return as the merits panel, said Schwartzman. While merits panels generally are different from special panels, occasionally special panels will hold onto a case if, in considering motions such as stay requests, they invest considerable time in understanding substantive matters that are closely related to the merits of a case. After the Tatel-Brown briefing order, that scenario now seems unlikely in this case, Schwartzman said. That could be a disappointment to the FCC and its defenders, because the three-judge panel not only denied the telco/cable stay request but also was seen as a good panel for the agency on the merits. That panel included two judges, Sri Srinivasan and Cornelia Pillard, appointed by President Barack Obama, who helped push the Democratic-run FCC toward the Title II broadband reclassification.

Guggenheim analyst Paul Gallant told us panel selection was a "black box" but said he wouldn't be surprised if Tatel ends up reviewing the current net neutrality case because he sat on the panels that reviewed previous FCC net neutrality orders. "It's not entirely clear how judges get assigned, but it seems reasonable that [Tatel] will end up on the Title II panel because he's shown up on all the recent related litigation," Gallant said. While Tatel wrote the opinions reversing all or parts of the FCC's prior net neutrality decisions, Schwartzman said his 2014 ruling in the Verizon v. FCC case provided something of a "road map" for broadband reclassification even if it didn't expressly invite the agency to carry it out.

Free State Foundation President Randolph May told us there's a "good chance" the FCC will lose on Administrative Procedure Act grounds. "The D.C. Circuit in general, and I suspect Tatel, probably, is no different in this regard, is sensitive to these type of procedural requirements," said May, a critic of the net neutrality order. Gallant declined to handicap the likely outcome, but said the panel's makeup would matter. "Net neutrality and Title II is a pretty partisan issue, so one would think the FCC is better served by a Democratic majority panel than the opposite," he said. There are eight Democratic and nine Republican appointees on the D.C. Circuit, but five of the Republicans are "senior" judges, some of whom don't hear as many cases as "active" judges. Only one of the Democrats is a senior judge. May said he believed the case would ultimately be decided by the Supreme Court if the D.C. Circuit decides the case on the substantive merits under the Communications Act.