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Telecommunications trade groups representing AT&T Inc., Verizon Wireless, Comcast Corp. and CenturyLink Inc. July 29 asked a full federal appeals court to review a decision upholding the Federal Communications Commission's net neutrality rules. The action is just the latest move in a high-stakes court battle that won't be resolved until after the presidential election.
The agency's 2015 rules reclassified broadband internet providers under a more stringent regulatory regime, akin to utility services, restricting how the providers are allowed to handle data moving on their networks. President Barack Obama backed the move, which was opposed by broadband providers and many congressional Republicans.
The internet service providers and their trade groups, including CTIA—The Wireless Association, the National Cable and Telecommunications Association, USTelecom and the American Cable Association, argue the FCC's move was an unlawful regulatory overreach.
The telecom groups made a calculated choice in asking the 11-member U.S. Court of Appeals for the District of Columbia Circuit to review the case rather than appealing the court's three-judge panel ruling directly to the U.S. Supreme Court.
Internet service providers are hoping for a win at the full D.C. Circuit. But if the full court rules in favor of the FCC—or doesn't agree to hear the case—the ISPs have bought themselves more time before taking the fight to the high court.
The Republican-controlled Senate does not intend to vote this year on President Barack Obama's nomination of D.C. Circuit Chief Judge Merrick Garland to the Supreme Court. It's not clear what the court's eight sitting justices would decide about whether to hear the case or uphold the FCC's rules.
A three-judge D.C. Circuit panel upheld the agency's rules in June ( U.S. Telecom Ass'n v. FCC, D.C. Cir., No. 15-1164, order 6/14/16 ).
Democratic presidential candidate Hillary Clinton supports the agency's approach to net neutrality. Republican candidate Donald Trump hasn't taken an official position, but the 2016 GOP platform is deeply critical of the rules.
FCC Chairman Tom Wheeler said the appeals by “the big dogs” were no surprise.
“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,” Wheeler said in an e-mailed statement.
The FCC will get a chance to formally respond to the petitions before the D.C. Circuit decides whether to grant them. If the court declines, the petitioners would have 90 days to appeal to the Supreme Court.
In their joint petition, wireline trade group USTelecom and ISP CenturyLink drew considerably on the dissent Republican FCC Commissioner Ajit Pai wrote in connection with the agency’s original 3-2 vote on the net neutrality rules.
USTelecom and CenturyLink argued that the Telecommunications Act of 1996 and decades of agency and judicial precedent unambiguously state that internet access is an information service and not a telecommunications service under Title II of the Communications Act of 1934.
The FCC’s decision to reclassify broadband as a telecommunications service, the groups said, represented an “unaccountable agency” attempting to “obtain significant legislative and judicial power that Congress never delegated to it.”
CTIA raised concerns that the FCC's new definition of the public switched telephone network — traditionally defined as the wireline telephone system — as encompassing internet protocol (IP) addresses could, by 2020, extend Title II common carriage regulations to billions of connected devices in the burgeoning “internet of things.”
“En banc review is needed because the Order, and the panel decision approving it, are seriously wrong in authorizing this power grab,” CTIA said.
In their own joint filing, cable groups NCTA and ACA focused on concerns that more stringent regulations could chill broadband deployment—on which the industry has already invested hundreds of billions of dollars—as well as on their argument that the FCC’s approach to reclassification repeatedly violated the Administrative Procedure Act governing the rulemaking process for federal agencies.
Arguing that the D.C. Circuit panel “eviscerate[d] the APA” in affirming the FCC’s decision, NCTA and ACA said the FCC didn’t present evidence of changed circumstances to justify a break from Title II-spurning precedent.
They also said the agency didn’t “make its views known to the public in a concrete and focused form” — a requirement codified by the D.C. Circuit in a 1977 case involving HBO — before voting on and adopting the Open Internet order.
Small Texas-based ISP Alamo Broadband Inc. filed its own petition calling for full D.C. Circuit review on First Amendment grounds. Among other concerns, the company said the FCC’s rules could be expanded to require broadband providers to block certain content at the government’s behest.
AT&T also filed a petition with the court.
To contact the editor responsible for this story: Keith Perine at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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