Introduction

In a federal court face-off against the nation’s biggest broadband providers, U.S. government lawyers upholding so-called “net neutrality” rules may enjoy a slight advantage — two of the three judges ruling on the case have shown indications of being sympathetic to the government’s position.

David Tatel, Sri Srinivasan and Stephen Williams, judges for the U.S. Court of Appeals for the District of Columbia, will hear oral arguments Dec. 4 on lawsuits filed against the Federal Communications Commission over its Open Internet Order, or net neutrality rules.

The FCC passed the rules in February. They prohibit broadband providers such as Verizon Communications Inc. and Comcast Corp. from blocking or slowing access to websites and charging higher prices for quicker delivery of content, otherwise known as paid prioritization.

FCC Chairman Tom Wheeler said the rules were needed to give, “consumers, innovators, and entrepreneurs the protections they deserve, while providing certainty for broadband providers and the online marketplace.”

But Internet providers, including AT&T Inc., and telecommunications groups such as the National Cable & Telecommunications Association, whose members include Time Warner Cable Inc. and Charter Communications Inc. have sued the FCC over the rules.

The United States Telecom Association (USTelecom), an industry trade group that represents broadband providers including AT&T and CenturyLink Inc., was one of the first groups to file suit, requesting the court to strike down the rules because it said they violate federal law and are an unnecessary government overreach that will stymie business growth.

Republican members of Congress filed a court brief last month arguing “that whether and how to regulate Internet access are policy questions of such profound significance that they are to be answered only by Congress.” Twenty-nine Democratic members of Congress, led by Rep. Anna Eshoo from California, and Sen. Edward Markey from Massachusetts, filed a brief in support of the FCC’s rules.

But the three-judge panel reviewing the legality of the rules has a decidedly liberal tilt that bodes well for the FCC, those following the case said.

Tatel, whom President Bill Clinton appointed in 1994, is the most notable. He was one of three judges that ruled in 2014 that parts of the FCC’s previous net neutrality rules passed in 2010 were unlawful because the agency lacked the authority to regulate the providers if they weren’t classified as a common carrier such as a phone company.

Tatel wrote the opinion in that case and some legal scholars believed he gave the FCC a roadmap for writing rules that would pass legal scrutiny.

Srinivasan was appointed by President Barack Obama in 2013 and is considered by some legal experts to be a potential nominee for the U.S. Supreme Court. Srinivasan’s appointment to the U.S. Court of Appeals for the District of Columbia was met with minimal fanfare from either side of the political aisle because of his noted equanimity. Many legal scholars said that despite his political constraint he is likely to rule in favor of the FCC.

Williams, who President Ronald Reagan appointed in 1986, is the third judge. Williams has participated in more than half a dozen events produced by the Federalist Society, a conservative legal group that promotes a strict interpretation of law.

Given the judges hearing the case, legal scholars believe the FCC net neutrality rules have a good chance of surviving.

“I think it will go 2 to 1,” Reed Hundt, FCC chairman during the Clinton administration, said in an interview.

Jim Speta, telecommunications scholar and professor of law at Northwestern University, said in an interview, “My prediction is that the FCC will win.” He added the FCC has “the statutory authority to do what they did.”

When Tatel wrote the opinion for the FCC-Verizon case, Hundt said his message to the FCC was simple: “Do it again or forget about it.” He said Tatel will likely write the opinion for this case as well.

In the FCC-Verizon case, Tatel wrote that the FCC couldn’t classify broadband providers as information services, which are lightly regulated, and then write rules as it did in its 2010 order as if Internet providers were telecommunications companies, which under Title II of the 1996 law can be more heavily regulated.

Reclassifying Internet providers under Title II would give the FCC authority to forbid providers from charging content providers or consumers more to carry their data over faster Internet connections.

When the FCC voted on the latest net neutrality rules, it said in a summary that it wouldn’t regulate providers like traditional phone companies, such as fixing Internet prices or levying taxes and fees.

Other legal scholars said they don’t believe Tatel wrote a roadmap for the FCC’s net neutrality rules, and the court is more likely to vacate the regulations, arguing that classifying Internet services as a Title II telecommunications service is misinterpreting the 1996 law.

The FCC’s “attempt to reclassify internet access service as a telecommunications service represents an impermissible interpretation that conflicts directly with the plain language of the [1996] Communications Act,” wrote Christopher S. Yoo, a professor at the University of Pennsylvania Law School who has written extensively about telecommunications law.

Yoo submitted an amicus brief in support of USTelecom ahead of the Dec. 4 oral arguments.

No matter what the outcome of the lawsuit, Yoo and other legal experts don’t believe the ruling will be appealed to the U.S. Supreme Court.

Speta said the Supreme Court prefers to accept cases that have received different and conflicting rulings. Because no other court heard the case before the D.C. circuit court, no conflicting decisions exist, making it unlikely the Supreme Court will agree to hear the case.