Judges named, schedule set for network neutrality case

The DC Circuit Court of Appeals named the three judge panel that will hear Verizon's challenge to the Federal Communications Commission's network neutrality rules. The judges, who were selected randomly, are Clinton appointees Judith Rogers and David Tatel and Reagan appointee Laurence Silberman, a senior judge on the court. The oral argument is set for September 9.

Judge 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, Judge 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," said Berin Szoka, president of the libertarian think tank TechFreedom and an opponent of the rules. But Andy Schwartzman, a media lawyer who favors the rules, said the panel is "pretty good" for the FCC. He admitted that Judge 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 Judge Silberman, while a conservative, is a "straight shooter" and a relative moderate on the court.