By Brendan Sasso - 06/25/13 09:07 PM EDT
Tatel wrote the 2010 opinion which struck down the FCC's previous attempt to enforce the principle of net neutrality against Comcast.
In that case, Tatel warned that if the court accepted the FCC's arguments, "it would virtually free the Commission from its congressional tether."
"I'd say that bodes rather ill for the FCC," Berin Szoka, president of the libertarian think tank TechFreedom and an opponent of the rules, said in an email.
But Andy Schwartzman, a media lawyer who favors the rules, said the panel is "pretty good" for the FCC.
He admitted that Tatel had some "harsh words" for the FCC in the Comcast decision, but he said the judge left room for the agency to try a different legal approach.
Schwartzman argued that all three judges are likely to follow a recent Supreme Court decision in City of Arlington v. FCC, which held that courts should defer to regulatory agencies when the law is ambiguous.
"All three of them are of a mindset that is likely to give deference to the government," Schwartzman said. "I could compose a number of panels that would be much less favorable to the commission."
He said that Silberman, while a conservative, is a "straight shooter" and a relative moderate on the court.
But Szoka argued that Tatel and the other judges are unlikely to defer to the FCC's interpretation and that the Supreme Court's decision in City of Arlington doesn't apply to the net neutrality case.
The FCC's net neutrality rules, adopted in late 2010 after the Comcast ruling, require Internet service providers to treat all traffic equally. Cellular carriers are barred from blocking apps or services.
Supporters of the rules argue they are critical for ensuring an open Internet that protects consumer choice and competition, but critics claim they unnecessarily restrict the business choices of Internet providers.
The net neutrality order was one of the most significant achievements of Chairman Julius Genachowski, who stepped down in May.
—Updated at 5:48 p.m.