Net Neutrality Advocates Saw Risks in Challenging 6th Circuit Ruling
The decision Friday by public interest groups not to challenge the 6th U.S. Circuit Court of Appeals’ narrow decision overturning last year’s net neutrality order appeared to be based on a number of considerations, including avoiding a precedent that could prevent future FCC rules (see 2508080020). Friday was the deadline to file a petition for certiorari seeking U.S. Supreme Court review. Some lawyers saw the 6th Circuit’s decision as badly reasoned and susceptible to further review (see 2507160048).
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“There were a lot of considerations that went into our decision” not to appeal, said Raza Panjwani, senior policy counsel at New America’s Open Technology Institute. “Obviously, we thought that the 6th Circuit’s decision was extremely flawed.” He told us it would be hard to see how anything could be classified as a telecom service, subject to Communications Act Title II rules, under the reasoning of the decision.
Until recently, there was bipartisan agreement that some rules were probably appropriate, Panjwani added. “This idea that no rules are required is … strange.” He noted that the fear of rules has meant keeping smartphone app stores open and ISPs from blocking apps on their networks. “The world we live in now was not guaranteed.”
University of Colorado associate law professor Blake Reid told us the decision not to seek cert was surprising, given the weakness of the 6th Circuit ruling. But the last administration's net neutrality rules “not going into effect in the near term was essentially a fait accompli, whether the final word came from the 6th Circuit, the Supreme Court or this FCC,” he said. There was probably “little upside in proceeding and little downside in waiting for more favorable circumstances down the road.”
The 6th Circuit’s opinion “is not only poorly reasoned but quite narrow,” Reid added. It “does little more than misapply Loper Bright and Brand X, and thus is somewhat unlikely to significantly influence future analysis of the issues.”
The odds of SCOTUS granting cert were “pretty slim in the absence of a circuit split,” noted Boston College law professor Daniel Lyons. The “silver lining” for net neutrality advocates is that the 6th Circuit's decision “leaves a lot of space for intervention at the state level, which is where many net neutrality supporters have turned their efforts, and I expect they will continue to do so.”
Free State Foundation President Randolph May said he expects further litigation. “Like a dog gripping its favorite bone, it is difficult for the pro-regulation advocates to give up litigating net neutrality,” he said in an email. “A rational calculation, based on the jurisprudence, is that the [Jessica] Rosenworcel FCC’s order would be reversed by the Supreme Court.” May said a SCOTUS decision could “put a nail in the coffin” of further FCC attempts to adopt new net neutrality rules.
Some lawyers see the 6th Circuit opinion as “weak,” said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society. Several “have told me they think that a court inclined to reach the same result could have done a much better job.”
Panjwani said that opponents declaring net neutrality rules “dead forever is a little bit presumptuous, unless they’re pretending” that rules in California and other states don’t exist. Most major ISPs have a presence in California, and it's difficult for them not to follow those rules, he noted. “It’s definitely not true that we’re in a rules-free state now,” he said. “This is a part of this alternative version of history … that says we’ve always been in this laissez-faire utopia free of regulation, except in those dark two years when the Tom Wheeler FCC imposed the investment-crushing burden of rules.”
Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy, said the 6th Circuit case is interesting as “an early post-Loper Bright decision.” That means courts would view critically “a quick flip-flop” on rules from the previous administration, he said. “But that also means a Supreme Court decision upholding a Title I classification for broadband will have a lot of staying power. The current court seems more likely to affirm Title I than to reverse and impose Title II.”
“It was already difficult to believe” the internet needed utility regulation in 2015, when the Wheeler FCC acted, Kane said. The broadband market today “is even more competitive, with whole new categories of broadband technology joining the ever-expanding wireline networks.”
American University administrative law professor Jeffrey Lubbers said the 6th Circuit “took a very narrow view of the assurances that the Supreme Court gave in Loper Bright that a previous decision’s ‘[m]ere reliance on Chevron’ is not enough to counter the force of stare decisis; a challenger will need an additional ‘special justification.’” The decision “took the view that the Supreme Court’s assurance only extended to ‘specific agency actions’ that had been held lawful under Chevron but concluded that the FCC rule under review was a different action than the ones upheld earlier,” he said in an email.