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'A Promising Court'

Selection of 6th Circuit for Net Neutrality Appeal Seems a Win for ISPs

Selection of the 6th U.S. Circuit Appeals Court to hear industry challenges to the net neutrality order may bode well for industry. Still, many questions remain, including which judges will hear the case and whether arguments are ultimately held in the Ohio-based court, industry experts said Friday.

The Judicial Panel on Multidistrict Litigation on Thursday used a lottery, randomly selecting the 6th Circuit Court for consolidation among the seven courts where the order was challenged. The Ohio Telecom Association and USTelecom filed a joint petition for review of the FCC order in the 6th Circuit (see 2406030053) in docket 24-3450.

The 6th Circuit is one of the six judicial circuits where Republican president-appointed judges predominate. Ten of the 16 judges, and most of the senior judges, are Republican appointees, including six judges by Donald Trump. President Joe Biden named two, with two more pending.

But industry lawyers note the lottery determines only where the record is filed; another circuit could ultimately hear the case. Also, the standard for a stay of the FCC order is high and arguments center on the U.S. Supreme Court’s evolving major questions doctrine, which may be weak grounds for a court to grant a stay.

A net neutrality advocate noted that the FCC won in the 6th Circuit a year ago when judges rejected Consumers' Research's challenge of the FCC's USF 2021 Q4 contribution factor (see 2305040087). But the panel that heard that case was made up of Judges Karen Moore and Eric Clay, President Bill Clinton appointees, and Kathy Stranch, whom President Barack Obama appointed. Various net neutrality advocates said they're filing in the case and didn’t feel comfortable commenting on the court's makeup.

The calculus is simple, said Daniel Deacon, assistant professor at the University of Michigan Law School. The selection of the 6th Circuit “makes it more likely the FCC will lose, on major questions grounds or otherwise, and increases the chance of preliminary relief being granted,” Deacon said.

The assignment isn’t “a game-changer, especially since the panel hasn't been announced yet,” Daniel Lyons, professor at Boston College Law School, said in an email. “The Fifth Circuit might have been better for [ISPs], but they likely dodged a bullet by avoiding the Ninth or D.C. Circuits,” he said. “Much more significant” is the Supreme Court’s pending Loper Bright Enterprises v. Raimondo decision, “which will dictate the law governing the Sixth Circuit's review,” he said.

The Supreme Court heard arguments in Loper Bright and Relentless v. Commerce in January (see 2401170074), examining the extent courts should give deference to expert agencies. A decision is expected in the coming weeks.

The 6th Circuit is “a promising court for the petitioners” and “the odds that that court will strike down the FCC's order are better than 50-50” depending on the panel that is drawn, TechFreedom Internet Policy Counsel Corbin Barthold said. But Barthold noted that some judges are difficult to predict.

Chief Judge Jeffrey Sutton, a President George W. Bush appointee, concurred in an opinion upholding the Affordable Care Act and is “a careful and cautious judge” unlikely to write an opinion that “aggressively pushes the boundaries” of the major questions doctrine, Barthold said.

Luck "favored the ISPs in landing in the 6th Circuit, but that doesn’t mean [it] will continue when the panel is drawn, even if the odds are favorable,” Free State Foundation President Randolph May said. May sees the odds of a stay as good: “It’s difficult to credibly argue that the public or anyone is being harmed by the status quo and there is a substantial likelihood the FCC’s order will be vacated on appeal.”