The US appeals court decision upholding the Federal Communications Commission's net neutrality rules wasn't quite the final word on the matter, as ISPs immediately vowed to appeal the ruling, with AT&T saying it "expect[s] this issue to be decided by the Supreme Court."

But while ISPs will give it their best shot, there are reasons to think that the Supreme Court won't take up the case. The appeal probably won't even make it to a rehearing by the full appeals court, a potential intermediate step before a Supreme Court case, legal expert Andrew Jay Schwartzman wrote last week in a Benton Foundation article titled, "Network Neutrality: Now What?" Schwartzman is a Georgetown Law lecturer, an attorney who specializes in media and telecommunications policy, and a longtime consumer advocate who previously led the Media Access Project.

The broadband industry lost a 2-1 decision (full text) by a three-judge panel at the US Court of Appeals for the District of Columbia Circuit, which rejected challenges to the FCC's reclassification of broadband as a Title II common carrier service and imposition of net neutrality rules. The next step for ISPs and their lobby groups could be a petition for an "en banc" review in front of all of the court's judges instead of just a three-judge panel. They could also appeal to the Supreme Court after losing an en banc review or appeal directly to the Supreme Court without taking that intermediate step.

Schwartzman breaks down the likelihood of an en banc review and a Supreme Court review, saying that neither is likely to even get a hearing.

"[T]he likelihood that the full DC Circuit would agree to rehear the case, much less reverse the panel’s decision, is extremely remote," he wrote. "The DC Circuit typically agrees to rehear a case only a few times each year, at most, usually where there is a sharp split on an important issue on which other circuits have taken a different stance. This case doesn’t meet those criteria and thus starts out as a particularly poor candidate for rehearing."

Schwartzman lists a few other factors that make an en banc rehearing unlikely. Judge David Tatel, one of the two who upheld the FCC's rules, "is considered to be highly knowledgeable on this issue and his colleagues will be loath to second-guess him. In addition, the issues on which Judge [Stephen] Williams dissented are garden variety administrative law questions which are extremely unlikely to merit rehearing."

The ISPs also face a math problem: they need six votes to get a rehearing. There are 11 active judges, of which two voted to uphold the decision as part of the three-judge panel. Another judge, Merrick Garland, "has removed himself from all decision making as long as his Supreme Court nomination remains pending," Schwartzman notes. That means ISPs would need six votes from the remaining eight judges to get an en banc rehearing. Those eight do not include the 79-year-old Williams, who has "senior" status and is no longer considered an active judge. Williams could ask for a vote on a rehearing, but he can't vote on whether the court will authorize one, Schwartzman wrote.

ISPs and their lobby groups have until July 29 to petition for a DC Circuit rehearing. They can ask for a Supreme Court review until September 14 or within 90 days of the DC Circuit denying a rehearing.

Brother and sister, can you spare a certiorari?

To get a Supreme Court review, ISPs must convince four justices to grant a petition for certiorari. Since the late Antonin Scalia's seat on the court has not yet been filled, they might need those four approvals from just eight justices.

"The Court grants certiorari in only about one percent of the cases brought to it," Schwartzman wrote. "In most instances, the Court will only agree to hear cases when there is a split among two or more lower courts on the issue presented." There was no such split in the net neutrality case. "Unless a case is of truly extraordinary magnitude, such as the election of the [p]resident in 2000, the mere fact that a case is 'important' or involves a lot of money is not enough to justify Supreme Court review," Schwartzman wrote.

In their case against the FCC, ISPs argued that the net neutrality rules violate their First Amendment rights, but they "could not convince even Judge Williams, who is typically very receptive to corporate speech arguments." This makes a Supreme Court case on the First Amendment question "a longshot," Schwartzman wrote.

The main issue in the case is whether the FCC can reclassify broadband providers, a move that put providers under a stricter regulatory regime used to justify the net neutrality rules. On this issue, it will be "almost impossible" to argue that there is any split among the courts, according to Schwartzman.

"[T]he unique history of this case makes the issue on review particularly narrow," he wrote. "In 2005, [the] Supreme Court considered the statute at issue in the reclassification question and determined that the statute is ambiguous so that, under longstanding precedent, the FCC is entitled to deference in its interpretation of the statute. And, as the DC Circuit pointed out in 2014 when it rejected the FCC’s earlier attempt to impose network neutrality rules, the FCC also has latitude to revise its interpretation, so long as it gave a reasonably good explanation of the change."

Besides the First Amendment and reclassification questions, "The other issues in the case are routine, if consequential, questions about compliance with procedural requirements, statutory construction, and application of facts to a known statutory framework," Schwartzman wrote. "None of them are the kind of questions that the Supreme Court generally reviews."

The FCC has reasons—but are they reasonable?

One prominent critic of the FCC's net neutrality rules agrees that a Supreme Court hearing is unlikely. The Center for Public Integrity reported earlier this month:

Even Christopher Yoo, a telecommunications law scholar at the University Of Pennsylvania School Of Law who submitted an amicus brief in support of the Internet providers’ argument to strike down the rules, agreed that an appeal would likely be unsuccessful. “There would need to be a broader issue for the court to take up,” Yoo said in an interview. He added that there are no conflicting laws in the case and that the high profile of the case alone isn’t enough for the court to take it up.

Yoo has frequently testified in front of Congress on FCC issues.

Critics of the court's decision rest their hopes in part on Williams' dissent. Williams didn't dispute the FCC's underlying authority to reclassify broadband. He concurred in part, writing, "I agree with the majority that the Commission’s reclassification of broadband Internet as a telecommunications service may not run afoul of any statutory dictate in the Telecommunications Act." But he argued that the FCC's 300-page neutrality order failed to meet its requirement to show that there are good reasons for the new policy.

"The Commission identifies two changes [in the broadband industry], neither of which seems very radical or logically linked to the new regime," Williams wrote. The two changes put forth by the FCC are consumers using broadband "to access third-party content, applications and services," and ISPs' emphasis on “speed and reliability of transmission separately from and over” other features, Williams wrote. The dissenting judge argues that neither of these are big changes since the 2005 Brand X case that upheld a previous FCC decision that classified broadband as a less lightly regulated "information service."

Gus Hurwitz, a University of Nebraska law professor and visiting scholar at the American Enterprise Institute, wrote that the FCC is not entitled to judicial deference by default. "This is the core difference between the DC Circuit’s majority and dissenting views: whether it is sufficient that the agency supplied 'reasons' in order to receive the benefit of deference, or whether those reasons must also have been arrived at through a reasonable decision-making process," he wrote.

Hurwitz pointed to a Supreme Court ruling on June 20 in Encino Motorcars v. Navarro; the case hinged on whether the Department of Labor should receive deference in a decision on whether certain employees are exempt from overtime pay requirements in the Fair Labor Standards Act. In that case, the court said that the department's "lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law."

Though this has nothing to do with the FCC, Hurwitz seems optimistic that the Supreme Court would take a similar approach and reject the FCC's reasons for changing its classification of broadband. Hurwitz also pointed to decisions in other cases involving the Environmental Protection Agency and the National Highway Traffic Safety Administration.

Schwartzman called this "wishful thinking." The Communications Act, in which Congress authorizes the FCC to regulate communications, "has a robust history of interpretation" that "gives the FCC very broad latitude," he told Ars today. In the net neutrality case, the "FCC had a voluminous record in which it had very powerful reasons that more than satisfied" the relevant requirements and a majority of the judges, he said.

Encino is a much different case than the one involving the FCC's neutrality rules, said Harold Feld, senior VP of advocacy group Public Knowledge. "There is a rather huge difference between 'the FCC didn't provide an explanation for changing course' versus 'I don't like their explanation and want a do-over,'" Feld told Ars. The Encino decision didn't change anything about the law—it even cited Brand X as governing its analysis, Feld said. The problem in Encino was that "the relevant agency changed a rule that had governed for 40 years with about four lines of explanation," Feld said.

In Encino, the Department of Labor didn't provide even a minimal level of analysis, so its decision was judged to be arbitrary and capricious. Justice Ruth Bader Ginsburg wrote a separate concurrence "to stress that nothing in today’s opinion disturbs well-established law." While an "unexplained inconsistency" in agency policy can be deemed "arbitrary and capricious," an agency "need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.”

While no one can predict with certainty whether the Supreme Court will take up the net neutrality case, a victory for ISPs seems unlikely at the moment. But the broadband industry certainly won't be giving up without a fight.