FCC Opposes Full Court Review of Net Neutrality Case

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By Kyle Daly

Oct. 3 — The Federal Communications Commission told a federal appeals court Oct. 3 there’s no need for it to review a three-judge panel decision upholding the agency’s net neutrality rules ( U.S. Telecom Assoc. v. FCC , D.C. Cir., No. 15-1063, decision rendered 6/14/16 ).

The FCC is opposing a petition for a full U.S. Court of Appeals for the District of Columbia Circuit review of the ruling from telecom industry trade groups representing AT&T Inc., Verizon Wireless, Comcast Corp. and CenturyLink Inc. (2016 TLN 8, 7/1/16). The agency said the judges who heard the case were correct to affirm the FCC’s rules for both mobile and wireline internet providers. It also argued the decision lacks any conflicts with other court rulings that might merit a full court review.

At stake is the commission's landmark 2015 order reclassifying internet service providers as common carriers under federal telecommunications law. The change subjects the companies to more stringent rules and closer oversight by the agency.

If the full court declines to hear the case, or if it takes it and rules in the FCC's favor, the petitioners will be able to appeal the case directly to the U.S. Supreme Court. Court watchers on either side of the debate say they don't expect the full D.C. Circuit to take the case, but that the request buys the petitioners more time to prepare their Supreme Court appeal (2016 TLN 20, 9/1/16).

As part of the 2015 order, the agency issued net neutrality rules forbidding ISPs from blocking, throttling or offering paid prioritization of internet content. In seeking review, the groups said the FCC reclassified internet service providers as telecommunications providers after decades of considering them information service providers without any change in facts to merit such an action (2016 TLN 20, 9/1/16). They also said the agency should have presented its views on the classification of broadband “in a concrete and focused form” before voting on and adopting the 2015 order.

The FCC said there is “nothing unprecedented—or even unusual—about an agency modifying its interpretation of an ambiguous statute to accommodate a shift in policy.” The agency noted that there was no change in circumstances even in the landmark 1984 case ( Chevron U. S. A. Inc. v. Nat. Res. Def. Council, Inc. , U.S., No. 82-1005., 6/25/84 ) in which the Supreme Court said federal agencies can interpret ambiguous statutes without going back to Congress for clarification — a case frequently cited in the request for rehearing.

The FCC said the final rules were a “logical outgrowth” of an earlier proposal that had raised the possibility of reclassification and asked the public to weigh in on the subject.

USTelecom, the lead petitioner in the case, stands by its request for review.

“We think there are serious issues of merit in this case and those should be considered in an en banc review,” USTelecom spokeswoman Anne Veigle told Bloomberg BNA.

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

The FCC's opposition brief is available at: http://src.bna.com/i6B

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