Federal Appeals Court Denies Petition to Review Net Neutrality Decision

(Rob Kunzig/Morning Consult)
May 1, 2017 at 2:54 pm ET

A federal appeals court on Monday denied a request from an industry group representing telecommunications companies like AT&T Inc. and Verizon Communications Inc. for a full court review of a June decision that upheld the Federal Communications Commission’s 2015 net neutrality rules.

The decision likely sets up an appeal to the Supreme Court as the FCC moves forward with a proposal aimed at undoing net neutrality regulations.

The U.S. Court of Appeals for the District of Columbia Circuit wrote in a 109-page opinion that it would not be reviewing the case from USTelecom that challenged the legality of the FCC’s 2015 Open Internet order and its reclassification of internet service providers as a telecommunications service. The court made the decision, in part, because of FCC Chairman Ajit Pai’s proposal to reverse the rules.

“The en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement,” Judge Sri Srinivasan wrote in the opinion. Judge David Tatel joined in the opinion.

Jonathan Spalter, chief executive of USTelecom, hinted that further legal action is possible.

“We will continue to review our legal options going forward to fully protect our open internet, and to connect all Americans to the promise and potential of broadband,” he said in a statement. He added that USTelecom’s position is similar to that of Judge Janice Rogers Brown, who wrote in her dissenting opinion that “an orthodox view of checks and balances leaves the choice of vision to Congress.”

Opponents of the FCC’s reclassification of broadband as “common carriers” under federal communications law have seen the Supreme Court as the eventual arbiter in the matter, as AT&T’s general counsel David McAtee expressed following the D.C. Circuit’s ruling by a three-judge panel in favor of the FCC’s rules last year.

“We’ve always thought of this as a question for the Supreme Court to resolve,” Berin Szóka, president of TechFreedom, a free-market think tank that acted as an intervenor in the case, said in a Monday statement.

Pai was heartened by the decision, which points out the FCC’s expertise in the matter. The opinion is “important going forward,” Pai said in a statement, “because it makes clear that the FCC has the authority to classify broadband internet access as an information service, as I have proposed to do.”

The majority opinion, however, stressed the court’s role is not to “assess the advisability of the rule as a matter of policy.” Instead, Srinivasan and Tatel wrote, the court’s job is to assess whether the net neutrality rules are permissible as a matter of law: “Does the rule lie within the agency’s statutory authority? And is it consistent with the First Amendment? The answer to both questions, in our view, is yes.”

“The D.C. Circuit has once again confirmed that the FCC’s Open Internet rules are lawful and supported by the evidence,” John Bergmayer, senior counsel at the consumer advocacy group Public Knowledge, said in a statement.

Lisa Hayes, general counsel at the Center for Democracy and Technology, said in a statement that the decision shows an agreement with the agency that the reclassification of broadband companies is “sound, and that the FCC has authority to regulate the marketplace.

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