WASHINGTON — The Federal Communications Commission won a big victory in a federal appeals court with a ruling that the agency had sufficiently justified its Title II-based approach to network-neutrality rules. But the last chapter has yet to be written in the years-long legal battle.

Internet-service providers have vowed to continue the fight, either by appealing the three-judge panel decision to the full U.S. Court of Appeals for the D.C. Circuit, or by going straight to the U.S. Supreme Court.

Some interested parties huddled with reporters after the decision to talk about the implications of the court’s call and prospects on appeal.

POTENTIAL LINES OF APPEAL

Network-neutrality detractors seemed to agree that the FCC’s decision to reclassify wireless under Title II of the Communications Act might be fruitful ground for appeal, given the distinctions the FCC had previously drawn between wired and wireless, though they were not handicapping prospects for success.

Another possibility at the Supreme Court, said Russ Hanser, partner at Wilkinson Barker Knauer, was what might be a nascent doctrine at the Supreme Court regarding reviews of particularly important agency decisions, in which agencies have “reshaped” the statutory authority bestowed by Congress.

Attorney Andrew Schwartzman, who supports the Title II-based rules, wasn’t buying that argument. He called “fanciful” the suggestion the Supreme Court wants to cut back on traditional deference by suggesting some cases are “too big” for Congress to have meant to delegate its authority.

“The Supreme Court has already said [in the Brand X case upholding the FCC’s previous definition of Internet access as an information service] that the reclassification issue was properly delegated to the FCC,” Schwartzman said. “I doubt that there is any other statute in the last few decades which so clearly delegated so much to the FCC for decision.”

Hanser cited a case involving the Affordable Care Act (aka Obamacare), in which the Supreme Court said in cases of such national importance, the court’s traditional deference to agency decisions might be more limited. That calls into question how much discretion agencies have, he said.

When Congress gave FCC forbearance authority, Hanser added, most people saw that as a deregulatory move. “There seems to be something strange to use it to vastly expand regulation, just not as far as it otherwise would have been expanded,” he said.

He would not be surprised if appeals of the rules to the Supreme Court focused on how much authority agencies have to create regimes different from the ones anticipated in the statute, he said.

Seth Cooper of free-market think tank Free State Foundation thinks the FCC’s general-conduct standard is another weak spot in the court decision.

“The D.C. Circuit’s light-touch review of a heavy-handed regulatory order offered an unsatisfying analysis of the general conduct standard, too eagerly downplaying its vagueness,” Cooper said in a blog post.

Cooper said the vagueness issue should be brought up on appeal, but an as-applied challenge could also be the legal vehicle to challenge the network-neutrality rules. If the FCC was to make a ruling based on the general-conduct standard — by disallowing zero-rating plans, for instance — an as-applied challenge to that decision could be a way to get a fuller vetting than the D.C. Circuit provided.

LOW ODDS ON REVERSAL

Schwartzman was not shy about offering up odds on an appeal, saying the chances for reversal are “close to zero.”

Given that the dissenter in the case — Judge Stephen F. Williams would have remanded the decision back to the FCC — was focused not on the agency’s power to reclassify (which the court upheld), but on how the FCC applied the law, the “core legal issue” is not in play, Schwartzman pointed out.

The only reason to seek rehearing is a tactical one to put off going to the Supreme Court until there is a ninth justice in place, Schwartzman said.

As to the Supreme Court, Schwartzman said there is no split in the circuit for it to resolve, and “it has already said that the central provision is ambiguous, and even Judge Williams agreed that the FCC has the power to reclassify. The only other issues in the case are garden variety administrative law statutory questions of no interest to the Supreme Court plus a nearly frivolous First Amendment question.”

A downpour of TV content is forecast for this week on the 10th anniversary of Hurricane Katrina and the devastation it unleashed on the Gulf Coast region in general and on New Orleans in particular.

In 2005, cable networks were among the first outlets to show the images of the stunning destruction to property and people’s lives in the days following the storm. Other specials through the years, such as HBO’s Emmy-winning When the Levees Broke: A Requiem in Four Acts, helped chronicle the effects on life on the Gulf Coast in the immediate aftermath of the storm.

This week The Weather Channel is leading the charge with a week of Katrina-themed content, including Katrina 2065, a special that looks at likely scenarios that could take place if Katrina hit 50 years from now. On Friday, Aug. 28, TWC will air a special report, Katrina: 10 Years Later, with Al Roker and Stephanie Abrams.

Also that Friday, TV One will look at the plight of education in New Orleans a decade after Katrina as part of its daily News One Now morning news series hosted by Roland Martin.

BET on Aug. 26 will premiere a news special, Katrina 10 Years Later: Through Hell in High Water, that will chronicle the lives of a diverse group of people who survived Katrina.

On the cable news network front, CNN will debut on Aug. 24 Katrina: The Storm That Never Stopped, in which network anchor Anderson Cooper travels back to the Gulf Coast and looks to reconnect with those residents and people he spoke with a decade ago following the storm.

On the digital front, offerings will include six-part documentary series New Orleans, Here & Now, from Time Inc. and Rampante, debuting Aug. 27 on Time.com and other platforms. It’s about six people living in New Orleans 10 years after Hurricane Katrina and is the first original premium video product from Time. Weather.com on Aug. 25 will stream nine hours of continuous highlights from 2005 Katrina coverage, starting at the same time as the 2005 coverage began and featuring clips from The Weather Channel.

And in real life (apart from TV), FYI has teamed with the affordable housing non-profit Make It Right to build a solar-powered new tiny home in New Orleans for a middle school teacher. On Aug. 28, they will host a house-warming event at the new 469-square-foot domicile in New Orleans’s Lower Ninth Ward, including Tiny House Nation host John Weisbarth.

— R. Thomas Umstead

Think Tank to FCC: Charter-TWC Deal Should Sail Through

Free-market think tank The Free State Foundation has released a paper outlining the benefits to consumers and broadband of a Charter Communications-Time Warner Cable merger.

Free State senior fellow Seth Cooper said the purpose is not to endorse or oppose the deal, but instead to outline the key considerations the Federal Communications Commission should be, well, considering. But Cooper clearly likes the cut of the deal’s jib and suggests it deserves fairly smooth sailing through the FCC and DOJ deal-vetting process.

He said the potential downsides for consumers appear minimal, and maybe nonexistent, and drew a distinction between this proposed merger and Comcast’s earlier play for TWC, abandoned after the Justice Department and the FCC agreed it should not go through.

Concerns about program withholding or broadband domination don’t apply to a Charter- TWC deal, Cooper said (though he does not concede they should have deep-sixed the earlier deal, either). “Whereas Comcast-TWC would have resulted in a nationwide broadband consumer subscription market share of about 30%, Charter-TWC would result in a nationwide broadband market share of about 21%. And those are numbers for wireline broadband only. The broadband market is much bigger: 43% of all broadband connections are now mobile, with next-generation wireless networks increasingly offering consumers three or more competitive mobile video viewing options.”

In any event, he said, the FCC should not look at “static” indicators like market share or concentration, but instead view the deal in the light of free-market dynamism, a light in which the deal looks good for consumer welfare, he said.

Cooper also called for a swift review, which may already be a bridge too far. The FCC at press time had yet to launch the comment cycle or start the informal shot clock on the deal, as it is still mulling the issue of how to treat third-party access to confidential information submitted by the parties involved.

— John Eggerton