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.
Wireless Carriers, ISPs Seek Rehearing of ‘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.
