Judge holds fate of net neutrality rules

Judge holds fate of net neutrality rules
© Lauren Schneiderman

A major court decision that will determine the fate of new Internet regulations could be written by the same judge who struck down earlier rules only a year ago.

In what the U.S. Appeals Court for the D.C. Circuit calls random chance, Judge David Tatel will be one of three judges slated to hear oral arguments Dec. 4 in a case challenging the Federal Communications Commission’s strongest net neutrality rules ever. 

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Tatel has been at the center of every major net neutrality case before the court in the past half decade, and the FCC has an 0-2 record against him on the issue.

But advocates of the rules don’t see it as a problem, and believe his earlier opinions offered a roadmap for the FCC's latest rules.

“If Tatel commands a majority, I expect he will write the opinion,” predicted Harold Feld, senior vice president at Public Knowledge, an advocacy group that is helping to defend the rules in court. 

Former President Clinton appointed Tatel to the court in 1994 to replace Ruth Bader Ginsburg when she took a seat on the Supreme Court. A graduate of the University of Chicago Law School, he was the first blind judge to be appointed to an appellate court. 

Judge Stephen Williams, a Reagan appointee, and Judge Sri Srinivasan, an Obama appointee, will also decide the case.

Early in Obama’s presidency, Tatel gave a speech highlighting his philosophy on regulation, calling it the real action in Washington. But he lamented that agencies tend to “choose their policy first and then later seek to defend its legality,” and said new rules should be firmly rooted in the law at the start of the process. 

"Even where Congress has left an agency statutory space to choose its own interpretation, that interpretation must still be reasonable,” he said at the time.  

In 2010, Tatel wrote the opinion reversing the FCC action punishing Comcast for blocking and throttling traffic to the peer-to-peer file sharing site BitTorrent. The court found that the FCC failed to cite any statutory authority to justify the decision.

The commission passed new rules that year in response, and Verizon quickly sued. It was Tatel’s opinion in 2014 that again struck down the bulk of those rules.

The FCC says its new net neutrality rules were developed with Tatel’s Verizon decision in mind. In that opinion, the veteran judge wrote that previous rules treated Internet service like a common carrier.

The FCC initially chose not to classify Internet service as such, but has since treated Internet service as a common carrier. That designation, opposed by Republicans and service providers, brings with it stricter authority to police net neutrality — the idea that no packet of Internet traffic should be prioritized above another. 

The rules bar Internet service providers such as Comcast or Verizon from blocking, throttling, or otherwise discriminating against certain Internet traffic or apps. It also prevents providers from creating fast lanes for websites willing to pay.

The central question before the court is no longer whether the commission’s rules are backed up with enough legal authority. Now judges are weighing whether the FCC was allowed to reclassify Internet service as a common carrier.

Advocates point out that Tatel’s previous opinion is peppered with references to the commission’s previous decision to not apply common carrier regulations to Internet service. They say that implies the agency has the ability to reverse course. 

“Judge Tatel is the expert of his own opinion,” said one lawyer representing a company supporting the rules in court, who was granted anonymity to speak freely. 

“I think Judge Tatel will be pleased that the FCC actually read his order this time around and followed it,” the lawyer added. 

That is, “unless they misread his opinion,” cautions Tech Freedom’s Berin Szoka, an opponent of the rules who filed his own brief in court. 

He argues the judge outlined a “pretty clear roadmap” for rewriting pared back rules under another authority — Section 706 of the Telecommunications Act — which was ultimately ignored.

Szoka said the case will hinge on whether Congress actually gave the FCC leeway to decide how broadband would be classified. 

The case could come down to Tatel.

“[Judge] Williams seems likely to vote against the FCC," Szoka predicted. "I wouldn't be so sure where Tatel might come down, though.”