Judges set for new net neutrality battle

Judges set for new net neutrality battle

A roster of high-powered attorneys on both sides of the net neutrality debate will face a panel of three judges next month that includes some influential and familiar faces. 

The U.S. Court of Appeals for the D.C. Circuit on Tuesday evening released the names of the judges who will hear the marathon two hour and 20 minute oral arguments in the brewing court battle over the Federal Communications Commission’s new Internet regulations. 

One of those judges is David Tatel, a Clinton appointee steeped in the Internet debate. He authored last year’s opinion striking down the FCC’s previous regulations and setting off the rush for new rules.

Stephen Williams, a Reagan appointee and senior judge on the court, will also preside over the case. Judge Sri Srinivasan, appointed by President Obama in 2013 and previously considered a potential Supreme Court nominee if a vacancy opens up, will round out the trio. 

The FCC believes its new rules will hold up to court scrutiny this time because the agency gave itself more authority to regulate broadband Internet by reclassifying the service as a common carrier, which has historically applied to traditional telephones and voice service. 

The net neutrality rules are meant to prevent Internet service providers such as AT&T and Comcast from prioritizing any piece of traffic above another. Those rules bar blocking, throttling and paid prioritization. They also include a general conduct standard to guard against new forms of abuse. 

But Internet service providers and trade groups representing the industry have sued to specifically block reclassification and the general conduct standard. They are pushing a number of legal arguments — including the commission’s alleged lack of authority to reclassify fixed and mobile broadband, First Amendment concerns and questions about the rule-making process.  

Dozens of outside groups have intervened in the high-stakes case, which is expected to eventually make it to the Supreme Court. Below is a list of attorneys who will face off during oral arguments on Dec. 4. 


Peter Keisler

Peter Keisler, a partner at Sidley Austin LLP, will take the lead for opponents of the net neutrality rules.

Keisler, who has been representing AT&T in the court fight, is a former assistant attorney general during the George W. Bush administration and served as acting attorney general in 2007 after former Attorney General Alberto Gonzales resigned amid controversy. He was nominated to both the Fourth Circuit Court of Appeals and the D.C. Circuit but was stalled both times. Democrats ran out the clock on his D.C. Circuit nomination ahead of Obama’s presidency. 

He began his career as a clerk for Supreme Court Justice Anthony Kennedy and federal Judge Robert Bork, whose nomination to the Supreme Court was rejected amid controversy. Keisler is influential in energy law, but he represented the cable industry in his first case in front of the Supreme Court, which involved access to cable polls for Internet service. 

Brett Shumate and Earl Comstock

Brett Shumate, a partner at Wiley Rein, will briefly argue against the rules on First Amendment grounds. He helped represent Verizon in its successful challenge of previous rules. Earl Comstock will also get a short time to argue on behalf of the Full Service Network. He is an attorney at Eckert Seamans.


Jonathan Sallet and Jacob Lewis

Jonathan Sallet, the general counsel for the FCC, will argue the agency’s case. Sallet has served in his position since late 2013 and worked as a partner for a trio of law firms before joining the commission. 

He helped with technology and economic issues on President Obama’s transition team in 2008 and previously served in the Clinton administration. Obama recently nominated him to be a member of the Council on the Administrative Conference of the United States.  

Sallet has also been involved with politics, acting as a communications director for Joe Lieberman’s 2004 presidential campaign and working on a series of Al GoreAl GoreDem Murphy wins New Jersey governor's race CNN to air sexual harassment Town Hall featuring Gretchen Carlson, Anita Hill GOP gov hopeful veers to right in New Jersey MORE campaigns. He clerked for Supreme Court Justice Lewis Powell. 

Sallet will split up part of his time with associate general counsel Jacob Lewis, who previously served as an appellate counsel with the Justice Department. Lewis will argue the FCC’s case on mobile broadband, First Amendment issues and issues raised by the Full Service Network.

Kevin Russell and Pantelis Michalopoulos

Kevin Russell, of Goldstein & Russell, will get a brief, five-minute window to argue net neutrality supporters’ position. He has been retained by Free Press, the Open Technology Institute and Public Knowledge. 

Pantelis Michalopoulos, a partner at Steptoe & Johnson, will also get five minutes to explain why net neutrality should apply to mobile broadband. He has been retained by Dish and Comptel.