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Six weeks after federal judges preserved net neutrality rules for the broadband industry, ISPs are seeking a full court review of the decision.
ISPs’ attempt to overturn the Federal Communications Commission rules were rejected when a three-judge panel of the US Court of Appeals for the District of Columbia Circuit voted 2-1 in favor of the FCC. Now the broadband industry’s trade groups are seeking an “en banc” review in front of all of the DC Circuit court’s judges instead of just a three-judge panel.
If this fails, ISPs can appeal to the Supreme Court, but the odds against them winning appear to be long.
One en banc petition submitted this morning before the case’s deadline came from the National Cable & Telecommunications Association (NCTA) and the American Cable Association (ACA), the two biggest cable lobby groups.
En banc petitions were also filed by CTIA—The Wireless Association, the mobile broadband industry’s primary lobby group; the United States Telecom Association (USTelecom) and CenturyLink (representing DSL and fiber providers); and a small Texas ISP named Alamo Broadband.
“We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC,” the NCTA wrote today.
The cable group claims to support net neutrality protections but not the related reclassification of Internet service providers as common carriers. While the FCC passed net neutrality rules using weaker underlying authority in 2010, Verizon successfully sued to overturn them.
That proved to be a hollow victory, as it led to the FCC using its stronger Title II common carrier authority to police the broadband industry in its latest set of net neutrality rules.
“As regulators for decades have acknowledged and consistently determined, dynamic Internet networks do not resemble or deserve to be treated like archaic telephone systems,” the NCTA wrote.
Tom Wheeler: Bring it on
FCC Chairman Tom Wheeler said today’s petitions were expected and predicted that the FCC will win in court again.
“It comes as no surprise that the big dogs have challenged the three-judge panel’s decision,” Wheeler said in a written statement. “We are confident that the full court will agree with the panel’s affirmation of the FCC’s clear authority to enact its strong Open Internet rules, the reasoned decision-making upon which they are based, and the adequacy of the record from which they were developed.”
The NCTA/ACA petition argued that the FCC didn’t provide good enough reasons for its net neutrality order, saying that a more detailed justification was needed because the Title II reclassification “rests upon factual findings that contradict those which underlay its prior policy.” The DC Circuit panel judges “paid only lip service to these principles,” the petition complained.
The NCTA/ACA petition also claims the FCC didn’t give the industry adequate notice before imposing Title II regulations on broadband.
The CTIA’s arguments touched specifically on mobile broadband, which had enjoyed weaker requirements until the FCC’s Title II order put fixed and mobile broadband under the same regulatory scheme.
The FCC “unlawfully reclassified mobile broadband” based on a finding that mobile broadband service is “interconnected” with the traditional telephone network, the CTIA said. Mobile broadband’s interconnectedness with the phone network was one of the findings made by the FCC in justifying its decision to reclassify cellular Internet access as a common carrier telecommunications service.
The DC Circuit panel decision said it accepted the FCC’s view that “VoIP applications now function as an integrated aspect of mobile broadband, rather than as a functionally distinct, separate service.” The CTIA disputed this, writing that “Mobile broadband service does not offer the ability to make phone calls just because consumers can use their connection to interact with distinct services offered by different companies that perform the functions needed to bridge the gap between the Internet and telephone lines.”
USTelecom and CenturyLink argued that Congress never intended to give the FCC Title II authority over Internet service. “En banc review is necessary to ensure that a largely unaccountable agency does not obtain significant legislative and judicial power that Congress never delegated to it,” their petition said.
Last year, CTIA, USTelecom, CenturyLink, and AT&T all claimed the FCC violated the First Amendment with the net neutrality rules.
But today, the Alamo Broadband petition was the only one to make a First Amendment argument.
The judges’ panel erred when it concluded that the First Amendment does not limit the FCC’s authority to regulate Internet service because “the rules strip broadband providers of their First Amendment right to exercise discretion about whether and how to carry Internet traffic over their networks,” Alamo claimed. “The Panel’s rationale would allow the government to not only order the blocking of Internet content it deems objectionable, but could also be used to try to strip other media—cable operators, broadcasters, and new media conduits—of First Amendment protection by declaring them to be common carriers.”
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