Net Neutrality Delay not Seen Tipping DC Circuit's Hand; Some Expect Court Split

“I can make arguments either way that the delay is good or bad," said Public Knowledge Senior Vice President Harold Feld, who backs the FCC order. "The reality is there's nothing to do but grit your teeth and wait. That's what's driving everybody crazy.”

A critic of the commission order offered a similar assessment. “It’s easy to conjure up all variety of theories concerning why the court’s decision hasn’t been forthcoming, and usually the 'conjuring up’ is consistent with one’s own predilections," emailed Free State Foundation President Randolph May. "But the reality is that no one really knows. If I were to speculate, I suspect the delay, if we want to call it that, reflects the fact that this is a complicated, important case, with a likely split decision on certain points leading to some back-and-forth sparring and perhaps even reevaluations in drafting separate opinions.”

An FCC official said it's likely there's a split among the three judges. The other possibility is that the judges went into their deliberations thinking the case would go in one direction, but struggled with the complexities when they tried to hammer out an opinion and its reasoning, the official said. A communications attorney who previously clerked for a circuit court said a complex ruling could certainly happen but doubted it would have taken this long if the judges agreed on the bottom line. "I think it means there's a dissent," the attorney said.

“The delay tells me nothing," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, who backs the FCC. "The period since oral argument is rather long, but hardly unprecedented. Sometimes a six-month delay can prompt speculation that the decision may be lengthy and that there is a strong likelihood of a dissent. However, in this case, it was reasonable to have guessed that on the day of oral argument.”

Feld said he is surprised the court hasn't issued a ruling, since it took the case on expedited review. He said that made him a bit more optimistic the FCC would be upheld or largely upheld. If the D.C. Circuit were going to basically reverse the FCC, it would probably be in more of a rush to issue a ruling, he suggested. He said he remains hopeful the FCC will be upheld on its Title II authority for both wireline and mobile broadband, though he acknowledged judges seemed to have sympathy for some of the wireless industry's arguments on mobile broadband. "Even if the FCC were to lose on some of the side issues, like interconnection, it's not as big a deal" as the Title II authority, he said.

“Your guess is as good as ours, but we're thinking a split decision is most likely, with the agency winning on wireline but losing on wireless” Title II authority, emailed TechFreedom Communications Director Evan Swarztrauber.

“The waiting is really, really a crippling distraction," emailed TechFreedom President Berin Szoka. "Many of our other policy issues are tied up in the decision, most notably the FCC's privacy rulemaking. The FCC could have waited to issue that til the decision was out but, of course, didn't. I still think the court will take as much time as possible to finish the decision mainly because, if there's a dissent, there will be a lot of back and forth.”

Feld said the court could just be struggling to harmonize its ruling in the face of the complexities and the far-reaching implications for communications policy. "This is an important case," he said. "Whatever FCC rationale they approve or not, whatever limits they impose on the FCC's authority or not, it's going to shape all future exercises of FCC policy, along with whatever legislative action Congress takes.”

“This case raised several major issues for the court to address," agreed Chairman Scott Cleland of NetCompetition, which is supported by broadband interests. Previous FCC net neutrality cases "were much more singular or binary, and this one is multi-variant," he said. "One logical explanation is there’s a greater volume of complex issues to be decided that have to be written very carefully to withstand appeal.”

Cleland remains hopeful the FCC order will be substantially reversed. "There are so many serious problems with law and process that I will be flabbergasted if the FCC is completely upheld," he said. "I’m most interested to hear whether the FCC definition that the internet is the same as the PSTN [public switched telephone network] passes the laugh test. If the FCC can wave its legal wand and redefine the reality that way, there’s no limit to what they can do.”

“The longer this goes on, and assuming the court ruling is a mixed bag of some sort, it gives [FCC Chairman Tom] Wheeler less time to properly notice [a reversal or remand] and turn around another order, which is good for ISPs," said one broadband industry official, who said his organization had a game plan for dealing with the ruling when it comes out. “It’s just a matter of reading and digesting the ruling, seeing what Harold Feld says about it, and reacting appropriately," the official quipped.

Feld had his own quip recently about the wait, posting this on Facebook: "DEAR D.C. Cir.: Please drop the #‎netneutrality decision AND GIVE ME MY LIFE BACK!!!! I can't take another Tuesday/Friday of this!!! 'No, I can't schedule emergency surgery to have my appendix out, I need to be ready if the D.C. Cir., drops the net neutrality opinion.' 'What Mr. President, meet on Tuesday morning? O.K., but I may have to leave at 10 a.m. if the net neutrality decision drops.' AAAAAAAAARRRRRGGGGHHHHHHH!!!!!!!!!"