Wireless Carriers, ISPs Seek Rehearing of 'Open Internet' Appeal

By Wayne Rash  |  Posted 2016-07-30 Print this article Print
Open Internet Appeal

It's worth noting that the arguments against the FCC action aren’t really about whether net neutrality is a good idea, but rather whether the agency exceeded its authority when it used the Title II reclassification to achieve it.

By filing their petitions on July 29, the various parties are meeting the required 45-day deadline for their appeal. This action stops the clock, so to speak, and gives the petitioners time to present their case either to the full Court of Appeals, or for them to appeal to the U.S. Supreme Court.

At this point, it’s not clear whether the petitions to grant a hearing before the full Court of Appeals will be successful, but if it turns down the request, then it gives the petitioners a credible means of further appeal up to the Supreme Court.

Szika said he expects that some of the judges on the full court will vote for the rehearing. But he contends that if the court denies the request, there will be some strong dissents, which could help convince the Supreme Court to hear the case.

Meanwhile, there’s another calculation going on in the background, which is the current presidential election. Depending on who wins that, the makeup of the Supreme Court could change to favor more conservative or more liberal rulings, which could affect the outcome of an appeal or even the likelihood that the Supreme Court will agree to hear the case.

A great deal also depends on which political party does well in the races for the House of Representatives and Senate. If the Democrats take control of both houses, then it's likely there will be legislative support for the FCC’s actions. If the Republicans retain majorities in both houses, then the findings of the Senate committee will get traction, which could result in some legislative limitations on the FCC’s authority to act in its reclassification effort.

The FCC, meanwhile, is dismissing the petition with a somewhat snarky comment. “It comes as no surprise that the big dogs have challenged the three-judge panel’s decision,” FCC Chairman Tom Wheeler said in a prepared 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.”

Wheeler’s problem is that an examination of the FCC’s actions and statements don’t support his assertions that the authority was clear, nor that the decision-making was well-reasoned. To the contrary, the decision seems to fly in the face of the FCC’s own statements, not to mention the clear rules set forth by Congress. Now it’s up to the court to decide whether given those facts the decision was still legal.



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