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

NEWS ANALYSIS: Major wireless carriers and internet service providers want the full U.S. Court of Appeals to rehear its challenge to the Federal Communications Commission Open Internet order.

Open Internet Appeal

Industry group USTelecom along with CTIA are asking the U.S. Court of Appeals for the District of Columbia to grant a rehearing of their petition challenging the Federal Communications Commission over its Open Internet order, which was decided June 15.

A three-judge panel upheld the FCC’s decision to regulate all internet carriers as common carriers under Title II of the Communications Act. One of the judges dissented in part.

The primary claims in the petition for the rehearing are that the FCC violated the Communications Act, and the intent of Congress by reclassifying the internet under Title II. The petitioners also assert the court was wrong in deferring to the FCC as an expert agency in regards to the internet. If the court grants what is called an en banc hearing, then a substantial number of judges on the Court of Appeals will hear the case.

The US Telecom Association is the primary petitioner asking for the rehearing. USTelecom is arguing that the court wrongly authorizes the FCC to expand its regulatory authority over the internet, that the FCC’s actions ignore Congress and that its interpretation of previous court decisions involving the internet was wrong.

CTIA has joined the petition with its own approach, which concurs with the petition by USTelecom, but adds its own argument that wireless broadband is covered under a separate part of the Communications Act and that the FCC was in violation of the law when it put both wired internet access and wireless broadband under the same rules.

Adding to the complexity of this situation is that between the time the Court of Appeals heard the case in December 2015 and the time it rendered its decision on June 15, the U.S. Senate Committee on Homeland Security and Governmental Affairs released a scathing report on the FCC’s actions, accusing the agency of overreach, and accusing the White House of undue influence over a supposedly independent agency.

Other organizations have joined the action, including TechFreedom, which plans to file a brief in support of USTelecom. “We are very focused on the question of whether the agency deserves deference under Chevron,” said Berin Szika, president of TechFreedom. The Chevron case is a principle in administrative law in which courts defer to the expertise of government agencies, unless their interpretations are unreasonable. It’s based on the case Chevron USA v. Natural Resources Defense Council.

While the courts will defer to the FCC and other expert agencies on matters that involve technical details of how the laws are interpreted, in the reclassification, the FCC is said to have moved beyond the strictly technical interpretations regarding communications into areas involving the intent of Congress. Congress, at least in the form of a Senate committee, is saying that the FCC went too far and the companies fighting reclassification are taking the same stance.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...