When a three-judge panel of the U.S. Court of Appeals for the District of Columbia handed down its much anticipated ruling on June 14 supporting the Federal Communication Commission's Title II reclassification, it was immediately clear that all sides of the conflict had their press release machines primed and ready to launch.
The resulting flood of conflicting statements made it clear that, regardless of the decision the three-judge panel announced, the legal battle is far from over.
This was confirmed later the same day when TechFreedom, a non-partisan technology think tank that had intervened in the legal tussle involving the FCC, cable companies, cell carriers and Internet service providers, announced it would appeal the court's decision. The organization discussed its appeal strategy during a press call.
TechFreedom says it will request a review by a full "en banc" Court of Appeals panel, which for this district would involve probably nine judges. If that doesn't work, the organization plans to appeal to the US Supreme Court. A spokesperson for TechFreedom said those moves will take place regardless of the plans of the other petitioners in the case, but indicated the group expects those parties to follow the same path.
The petitioners in the case included large cable and backbone providers, wireless companies, entrepreneurs and others that are claiming the reclassification of the Internet under Title II of the Communications Act was beyond the statutory authority of the FCC, it endangered the First Amendment rights of users, and it violated the Administrative Procedures Act. The petitioners also claim the FCC's actions were arbitrary and capricious.
Two of the three judges on the appeals court panel agreed with the FCC, while the other issued a partial dissent. A rehearing before the full Court of Appeals would allow all of the judges to render a decision that could overturn the recent decision by the three-judge panel.
Regardless of what the Court of Appeals decides, it's a safe bet that decision will be appealed as well. But if the court declines to let a full panel of judges hear the case, the appeal to the Supreme Court may happen sooner.
Meanwhile, the FCC is free to enforce its Open Internet orders while the appeal is underway. While it's possible for one or more of the petitioners to request a stay, which would prevent any enforcement action of the Open Internet order, the parties challenging the FCC have indicated it's unlikely because such a stay was denied earlier in the case.
However, TechFreedom Policy Counsel Tom Struble said petitioners can challenge the enforcement actions of the FCC as the agency tries to implement its Open Internet orders.