DC Circuit Requests FCC/DOJ Net Neutrality Response; Rehearing Still Doubted

"We are preparing our response," said an FCC spokesman. Most petitioners didn't comment.

Almost all parties we queried said they doubt rehearing would be granted, a view various parties have expressed since the panel ruling (see 1606150038, 1607280049, 1608020045). "This is pretty normal, although the Court sometimes dismisses petitions without soliciting a response," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, who filed amicus briefs backing the FCC order. "I imagine there will be a lot of noise that this is an important development, but it isn't. Odds of rehearing being granted are still near zero." The rehearing odds "are at zero or pretty close," agreed Brad Ramsay, general counsel of NARUC, an intervenor supporting the FCC. "It's just not the kind of case where this Court typically will grant rehearing."

FCC critic Randolph May welcomed the news but cautioned against exuberance. “The order is a somewhat hopeful sign for the petitioners," emailed May, president of the Free State Foundation. "Hopeful is better than hopeless. But I think it would be a mistake to over-read the order. Given the significance of the case, perhaps the court just wants to make sure its bases are covered. I still think the best chance for eventually overturning the FCC’s Open Internet order is in the Supreme Court.”

TechFreedom President Berin Szoka was the most optimistic, but also guarded. "This is very encouraging but not surprising, since this is such a significant case. Asking the FCC to respond means at least one judge wants to hear the FCC's view. It's also not surprising that we don't get a reply brief," he emailed. "I remain cautiously optimistic. Getting the D.C. Circuit to reverse the panel decision would, of course, be great." But "getting a few strong dissents from a decision not to grant rehearing would tee the case up perfectly for the Supreme Court, which has always been our focus."

It wouldn't be surprising "if some of the more conservative activists on the court would like to get their hands on this," said Harold Feld, senior vice president of Public Knowledge, another FCC supporter. "But I find it highly unlikely a majority of the court will want cert. Mind you, part of the strategy on the other side is to see if they can pick up a conservative dissent from refusal to review en banc. That would potentially help on a cert petition to the Supreme Court."

Petitions for rehearing are "rarely granted," said the D.C. Circuit procedural handbook. The court is "very stingy" about rehearing cases, said Morgan Lewis lawyer Andy Lipman, who isn't involved in the case but represented parties supportive of the order. He said D.C. Circuit panels issue about 500 rulings a year, but the court rehears en banc only one or two cases on average, and none in some years. It's "exceedingly unlikely" the court will grant en banc review, he said. The judges have a heavy workload and are reluctant to increase that workload by second-guessing each other's decisions, he said: "The judges have to trust one another and have faith in their colleagues."

The court will rehear a case if it's needed to maintain "uniformity," for instance, if a panel issues a decision that is in conflict with court precedent, Lipman said, adding: "That's definitely not the case here." A case of "exceptional importance," often raising constitutional issues, could also get a rehearing, he said. While Alamo Broadband raised First Amendment speech issues, Lipman said that doesn't appear to be "the crux" of the case.