Wheeler FCC Will Have To Move Quickly if DC Circuit Sides With Net Neutrality Opponents, Lawyers Say

Several lawyers, including a former general counsel at the FCC, said it would be difficult for the FCC under Chairman Tom Wheeler to address an adverse decision before the start of a new administration in January 2017. “Could the Wheeler FCC act quickly enough to respond to an adverse decision?” asked a top telecom lawyer with extensive appellate experience. “It’s possible. But as you know, the FCC doesn’t usually act that quickly. Generally, I’d say there would be no chance of action that quickly, but on this matter the Wheeler FCC would be very motivated to act.”

The D.C. Circuit heard arguments in Verizon v. FCC​, the appeal of the FCC’s 2010 net neutrality order, in September 2013 and rendered its decision in January 2014. The FCC took another 13 months to issue revised rules. Everyone expects a much faster process this time. Industry observers disagreed, though, on the likelihood the Wheeler FCC will have time to act should the court reject all or part of the order, or remand it for further work.

A challenge to the February order was expected, said Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to Commissioner Mignon Clyburn. “Surely, Chairman Wheeler, General Counsel Jon Sallet, and Counselor Phil Verveer have reviewed the possible outcomes of the appeal and have an outline, if not a game plan, already in place,” Hoffman said. “As a former Supreme Court and court of appeals law clerk, Sallet, especially, has a keen instinct for how [the] court may rule, and the political acumen to adjust.”

Wheeler, Sallet and Verveer designed “a tight, well-grounded, legal argument for the chairman's ‘hybrid’ approach to the open internet before the president intervened,” Hoffman said. “That approach, by the way, found merit and buy-in from the key interested parties, and it might have found favor with the court.” One key question is whether Congress will intervene, Hoffman said. In the interim the FCC may want to re-think its “Cyberdyne” model of enforcement until the courts weigh in again, he said, referring to the artificial general intelligence system that is the main antagonist in the Terminator movies. “It has gone from melodrama to sci-fi, and there are few sci-fi fans on the Hill,” he said.

D.C. Circuit Does What It Wants

The court “does what it feels like doing, when it feels like doing it,” said Andrew Schwartzman, Benton senior counselor at Georgetown Law School. But Schwartzman doesn't expect the order as a whole to be overturned. The court tries to act more quickly in expedited cases, he noted. “For example, it was about two and a half months between argument and decision in CBS v FCC, the case involving the confidential documents in the Comcast/TWC transaction,” he said. “But there is no assurance when it will set argument and how long it will take to decide the net neutrality case, which is much more complex than CBS v FCC.”

It is “reasonable to speculate” oral argument will be in December or January and that a decision is most likely in Q2 of 2016, Schwartzman said. “However, there are too many variables to be confident about that, since there might be certiorari petitions, stays, rehearing petitions, etc., that could complicate things.” Schwartzman supported the FCC order.

"The court has already indicated its desire to move quickly, as illustrated by the new expedited briefing schedule,” said former FCC Commissioner Robert McDowell, now at Wiley Rein. The three-year appellate process for the 2010 order was an “anomaly,” with review slowed in part by the unusual Paperwork Reduction Act review delay at the Office of Management and Budget, said McDowell, who voted against that order. “In light of that unique history, observers should not conclude that the court will dally with this one.”

A Q2 2016 court decision could easily allow the commission to move quickly for one simple reason, McDowell said. “The regulation of Internet network management is a high priority for this administration,” he said. Then-Sen. Barack Obama “campaigned on this issue early in the 2008 primaries and it's still important to the Netroots activist base,” McDowell said. “The FCC could analyze the court's decision and issue a [Further] NPRM in about 60 days allowing ample time for reply comments, all while drafting the order simultaneously.” McDowell said the administration has until 11:59 a.m. on Jan. 20, 2017, “to act on their core priorities, and this one is at the top of their list. That's an eternity away when you're talking about such a high-profile and signature issue for the White House."

Berin Szoka, president of TechFreedom, a net neutrality opponent, said time will be short if the FCC needs to react to the court. Even if oral argument is this winter, a decision is unlikely before May or June, he said. Challenges to the order focus on both the FCC's authority under Section 706 of the Communications Act to impose the rules and the FCC’s decision to reclassify broadband as a Title II service. “If the FCC either loses on the rules as written or on Title II, but wins on 706, it will have to try again,” Szoka said. “It's hard to see how the commission could even vote on issuing a new NPRM” before mid-September, he said. That would mean the comment cycle likely would extend into December. “It's conceivable that the commission could issue a new order before Jan. 20” and the end of the administration “but it would be very difficult,” Szoka said.

Like the Energizer Bunny

Predicting how the court will rule is difficult, said Free State Foundation President Randolph May, a net neutrality foe. “If the FCC is rebuffed by the court once again, I'm confident that if the Obama administration is still in control of the commission that, just like the Energizer Bunny, it will come right back to try yet again with another fix-it-up attempt,” he said. “And it will do so as fast as it can before a potential change in control at the agency."

“The political nature of the ultimate decision drove the commission to some legally inelegant solutions,” said Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation. “There are so many moving parts, the big one being what the court comes back with and when. The only potential for lasting certainty would come from the Hill.”

The Obama administration would have plenty of time to appeal an adverse decision to the Supreme Court, said Public Knowledge Senior Vice President Harold Feld, a net neutrality supporter. “I don't think the FCC will be reversed,” he said. “But if petitioners did win on either their Constitutional arguments or statutory authority arguments, the FCC would want to appeal. But if we have [a] Republican FCC, and a reversal by the D.C. Circuit, odds are good a Republican FCC would happily take a loss and decline to appeal to the Supreme Court.”