THE BLOG

Be Careful What You Wish for (Part II)

03/18/2015 05:51 pm ET | Updated May 18, 2015

Many months ago, on this very blog, I wrote about how Verizon, in suing the FCC to block the 2010 Open Internet ("Net Neutrality") rules, might rue the day it actually won in court ("Verizon, Be Careful What You Wish For").

I said that the U.S. Court of Appeals for the D.C. Circuit, in remanding the FCC's rules, basically told the agency to make up its mind: you can't say that broadband is like a computer attached to a phone line, subject to the lightest form of regulation, and then turn around and regulate it like a utility, prohibiting unreasonable discrimination, said the court. Instead, you either have to decide not to impose utility-style regulation at all, or decide that broadband is, in fact, a utility requiring strict non-discrimination limits in order to protect consumers and the open Internet.

I said months ago that if forced to make such a choice, the FCC very well could say, OK, we change our characterization of broadband. We'll say it's a utility. Here are the Open Internet rules you must live by, broadband providers, complete with a ban on unreasonable discrimination against different types of content.

As we all know by now, the FCC did just that.

Republicans are screaming like someone stole the champagne from the RNC refrigerator, hauling FCC Chairman Tom Wheeler before a litany of Republican-run Congressional committees. Verizon and its fellow broadband providers, like Comcast, are screaming, too. They threaten to sue the FCC... again.

But as I wrote here many months ago, such threats ring empty.

Since the D.C. Circuit's decision to remand the rules back to the FCC for revisions, something has changed. New judges, nominated by President Obama, are on the court. They all were confirmed over loud Republican objections. Then-Senate Majority Leader Harry Reid used the "nuclear option" to change Senate rules and allow a simple majority, rather than 60 votes, to confirm these judges, who even look different from many of the D.C. Circuit judges, being women, or African American, or even--dare I say-- young.

The same judges to hear the first challenge to the FCC's Net Neutrality rules might very well uphold the FCC this time around, reasoning that the FCC did exactly what the court told it to do. It made up its mind, changed the legal characterization of broadband, and promulgated revised rules accordingly.

If those judges rule against the FCC, though, the fans and supporters of the Net Neutrality rules can pull a procedural maneuver and call for an "en banc" review before all the judges of the D.C. Circuit. What was once a reliable bastion of Republican appointees is now essentially split, with nine Republican and eight Democratic appointees. Four of those Democrats were appointed by President Obama and confirmed between 2013 and 2014. Such a panel hardly represents a slam-dunk for Republican opponents of the FCC's Net Neutrality rules.

Moreover, the four Obama appointees no doubt would notice that a fellow Obama appointee, FCC Chairman Tom Wheeler, came around to the view that designating broadband as a utility was the right answer. They no doubt would notice that President Obama himself, in public statements and in documents carefully cataloged on the FCC record, in accordance with FCC notice-and-comment procedures, supported designating broadband as a utility in order to best protect an open Internet.

In fact, the hysteria expressed by Republicans about the FCC's Net Neutrality rules sounds a lot like the hysteria expressed by Republicans over President Obama's nominees to the D.C. Circuit. Could it be that Republicans knew then that such nominees would be more likely than not to support the same philosophy of effective government and consumer protection espoused by the President himself?

So once again, I say to Verizon and its fellow broadband providers: be careful what you wish for.

If you sue the FCC, you probably will lose. Even if you win the first round, you probably will lose en banc. Once you lose in court, you will have strengthened the hand of Senate Democrats, who currently are able to block passage of any law seeking to overturn the FCC's Net Neutrality rules. Senate Democrats will point to the D.C. Circuit and say, the second-highest court in the land just upheld the FCC. This matter is decided. It's over. We shouldn't overturn the decisions of the court and the FCC.

And then, maybe, just maybe, someone will say... I think I read about this a while back in HuffingtonPost.com.

David Goodfriend is a Washington, D.C. lawyer whose clients include eBay, DISH Network, the International Brotherhood of Teamsters, and independent programmers like beIN SPORTS. He is Chairman of Sports Fans Coalition and teaches telecommunications policy at the Georgetown University Law Center and the George Washington University Law School.