Net Neutrality Judges Named; FCC Critics Hopeful, Others Still See Likely Agency Win
The court panel that will review the FCC net neutrality rollback includes two Democratic appointees and one Republican appointee. That cheered net neutrality advocates, but they and others cautioned against reading too much into the selection, and some suggested the commission is likely to be upheld.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Judges Judith Rogers, Patricia Millett and Stephen Williams of the U.S. Court of Appeals for the D.C. Circuit will hear oral argument Feb. 1 in Mozilla v. FCC, No. 18-1051, said the court's updated argument schedule. Rogers was nominated by President Bill Clinton; Millett by President Barack Obama; and Williams by President Ronald Reagan. It's the first three-judge panel reviewing an FCC net neutrality order that doesn't include Judge David Tatel, another Clinton appointee, who was in the majority on previous rulings for and against FCC net neutrality regulation.
The panel "probably slightly ups the odds of reversal, but I think predicting on the basis of political affiliation on this kind of case is problematic," said New Street analyst Blair Levin. "Williams, having dissented on the earlier decision, may have a strong view, though if you read his dissent, it is not clear he would like the 2017 decision more than the 2015 decision." Williams partially dissented on the ruling affirming the 2015 FCC net neutrality order.
"Yogi Berra comes to mind here: predictions very hard, especially future oral arguments," emailed Andrew Schwartzman, counsel for the Benton Foundation, a petitioner challenging the FCC's Communications Act Title I order undoing Title II net neutrality regulation. "This is a fairly good panel for the challengers."
"It's a pretty balanced panel, with Judge Rogers being the key vote," said Gigi Sohn of the Georgetown Law Institute for Technology Law and Policy and Benton. "We know where Williams stands, but that’s about it." The D.C. Circuit "doesn’t necessarily decide cases based on the party of the president who appointed a particular judge," said Stuart Brotman, University of Tennessee media management and law professor.
Others stressed judicial deference to reasonable decisions by expert agencies under the Supreme Court's Chevron and Brand X rulings (the latter upheld cable modem service as Title I). “Even with a Democratic panel, the precedent is for the FCC’s decision to get court deference," said Cowen analyst Paul Gallant. "But no doubt they will look hard at whether the FCC’s policy arguments, including lower capex, really hold up.” The commission said "light touch" Title I broadband regulation would likely spur capital expenditures that it said were depressed by "utility style" Title II regulation.
"There isn’t a lot of new legal ground to till here, so panel selection doesn’t seem as important," emailed Doug Brake, Information Technology and Innovation Foundation broadband and spectrum policy director. "There are a few new arguments around the Commission’s use of section 257 to support the transparency rule, but for the most part this case is constrained by Brand X. Probably the most remarkable thing is that we might get a major net neutrality opinion not written by Judge Tatel."
Williams is "highly likely to affirm" the FCC order, given his history on commission decisions generally and "the earlier net neutrality case in particular," emailed Free State Foundation President Randolph May. “By all rights, Judges Rogers and Millett should be likely votes to affirm too. Even if they disagree with the FCC’s statutory interpretation, which I think is correct, just based on Chevron deference, they should affirm. After all, when the court affirmed the Obama FCC’s [2015] Open Internet Order, the court relied heavily on Chevron -- just as the Supreme Court did in Brand X in 2005 in affirming the FCC’s determination then that Internet access is [a Title I] information service."
"We have a better than usual sense of where Judge Williams will be on mobile, since he dissented on that the last time around," emailed Schwartzman. "It is more difficult to guess how he will approach the FCC's revised legal and factual analyses, but his track record suggests that he will be sympathetic to the government. Judge Millett is likely to be receptive to the petitioners' arguments, but she is very rigorous and must be convinced before she would vote to reverse. I wouldn't say that Judge Rogers is a 'swing vote,' but it is unlikely that she would vote to reverse the FCC while Judge Millett voted to affirm." FCC Chairman Ajit Pai welcomed the apparent end of the push for a Congressional Review Act resolution to disapprove the net neutrality rollback (see 1901020046).