Another appellate round before the Comcast panel? Could be, if Verizon gets its way

Wasting no time, Verizon has taken a bold move designed to herd the next round of appeals in the Net Neutrality proceeding back before the same panel of judges who slammed the FCC in the Comcast decision last April. Verizon has filed a “notice of appeal” with the U.S. Court of Appeals for the D.C. Circuit relative to the Commission’s latest Net Neutrality decision. That alone might raise some eyebrows. But taking it one step further, Verizon has filed a separate motion asking that the Comcast panel be assigned to Verizon’s appeal.

Appellate litigation aficionados take note.

Verizon’s decision to file a “notice of appeal” pursuant to Section 402(b) of the Communications Act is the first element of a one-two strategy. Section 402 lays out the ground rules for getting appellate review of FCC decisions. It establishes two separate and distinct types of review. Section 402(b) provides that agency decisions relating to licensing actions can be reviewed only by the D.C.Circuit; such review is initiated with the filing of a “notice of appeal”. All other agency decisions can be reviewed by any federal court of appeals; in those cases, the process gets started with the filing of a “petition for review” pursuant to Section 402(a).

In perhaps overly simplistic terms, the “appeal” route specified in Section 402(b) tends to be seen as applicable to Commission actions on specific applications for specific licenses or permits – that is, actions that directly related to particular authorizations. In the same simplistic terms, the 402(a) “review” process is available for judicial review of broader rulemaking decisions of more general impact. Since the December Net Neutrality decision was plainly a rulemaking decision of very broad impact, one might have figured that it would be subject to the 402(a) “review” process.

So much for the simplistic view.

If that view were to hold, Net Neutrality – a broad rulemaking decision – might not end up in the D.C. Circuit, but rather in some other federal circuit court of appeals. Who knows how any other circuit might feel about Net Neutrality? But we do know from Comcast that at least some members of the D.C. Circuit have some strong views that are not especially simpatico with the Commission’s. So if you’re Verizon (or any other opponent of the FCC’s latest take on Net Neutrality) and you’re given your druthers, you’d probably opt to have the next round of appellate review go to the D.C. Circuit.

You could, of course, file a Section 402(a) “petition for review” with the D.C. Circuit and keep your fingers crossed that nobody files a similar petition in any other circuit. (If petitions for review of the same order are filed in different circuits – and if certain procedural hoops are jumped through – a lottery process kicks in to determine which circuit gets the case.) But if you’ve got your heart set on one circuit alone, that’s iffy, at best.

What to do? Well, you could file a Section 402(b) “notice of appeal” with the D.C. Circuit – if you could figure out a way to claim that the FCC decision has at least arguably changed a license of yours in some way.

If you guessed that Verizon picked Option 2, go to the head of the class. Citing a couple of sentences buried in Paragraphs 133-135 of the Net Neutrality order, Verizon argues that that order effectively changes Verizon’s licenses and, therefore, is appealable under Section 402(b).

And since 402(b) appeals can go only to the D.C. Circuit, if Verizon’s argument holds, the case is guaranteed to stay in D.C.

(Another advantage to Verizon: Section 402(b) appeals can be filed as soon as the FCC lets go of its order, while Section 402(a) review proceedings can’t be initiated until the order has been published in the Federal Register. The Net Neutrality order was issued in December but has not yet shown up in the Register – so anyone who thinks that 402(a) is the relevant section has not been able to file yet, leaving the field open to Verizon to make its move.)

An impressive gambit on Verizon’s part. But wait, there’s more.

There are 13 judges on the D.C. Circuit, but only three of them sat on the Comcast panel. In Verizon’s best case scenario, it would get those same three. But panel assignments in the D.C. Circuit are ordinarily made randomly, so even if Verizon’s appellate strategy works, it might still take a stroke of luck to get the Comcast panel . . . unless, of course, you ask the Court to assign that same panel to your case. And sure enough, that’s what Verizon has done.

Not that that is a conventional request. In fact, the court’s rules don’t seem to contemplate such requests . . . but they don’t preclude them, either. So why not ask?

Enter Verizon’s cleverly titled “Motion to Assign Case to the Panel that Decided Comcast Corp. v. FCC. Is that clear enough? Verizon can’t point to any slam dunk precedents that mandate assignment of a particular panel. But it can legitimately argue that the issue of Net Neutrality is complex, and the Comcast panel already addressed one aspect of it, and the FCC’s latest decision is plainly an effort to respond to the Comcast court’s position. So Verizon can reasonably claim that its appeal is just another round in an on-going slugfest – in which case, wouldn’t it make sense to assign the case to the Comcast panel?

Will either – or both – of Verizon’s strategies work? It’s impossible to say just now. The Court generally doesn’t like being told by litigants how best to manage its own docket. Plus, neither of Verizon’s points – i.e., the Section 402(b) “appeal” approach and the effort to get the Comcast panel – is a sure winner by any means . . . but neither is laughably wrong, either.  So it’s certainly worth a shot.

If you doubt the potential benefits to Verizon should its approach pay off, check out the reaction of Public Knowledge, a Net Neutrality supporter. In a press release, the PK legal director sniffs that Verizon is “play[ing] legal games” and “trying to be cute”. Oh snap. He urges the court to “see through this ploy” and reject Verizon’s arguments. Such apparent resentment suggests serious unhappiness chez Public Knowledge relative to the possibility that Verizon’s approach might work.

We’re still in the early, early rounds, but it’s obvious that we can expect to see some very interesting appellate lawyering before the fate of Net Neutrality is finally resolved. Stay tuned.