The decision by the US Court of Appeals for the District of Columbia Circuit not to grant a full court rehearing of the Title II reclassification decision isn’t a victory for net neutrality, despite the ballyhoo that’s making its way around the internet.
It’s also not a defeat for net neutrality. In reality, it’s simply a procedural action in which the court recognizes that such a full hearing would likely be a waste of time given the Federal Communications Commission announced plans go back to regulating the Internet under Title I of the Communications Act.
The action by the FCC, then led by former FCC chairman Tom Walker, to reclassify internet providers as common carriers under Title II of the Communications Act had been challenged in court, but the Court of Appeals found that the agency did have the authority to carry out the reclassification. The court did not find for or against net neutrality as policy and the May 1 decision does nothing to change that.
The majority decision not to rehear the case was based on the announcement by the FCC to change the reclassification, but there were other issues at play as well, including the presidential interference with an independent agency and the fact that the FCC changed course suddenly with little explanation after receiving comments based on the likelihood of net neutrality legislation.
There were three dissents to the decision based on a variety of legal disagreements. These judges who supported the rehearing indicated they thought the initial decision was wrong in deciding that the FCC had the right to make the change to Title II, or because they thought other arguments were equally compelling.
One thing was clear, however. All of the judges agreed that the FCC could roll back the reclassification either because it had the right as an expert agency to make the decision, or because they never should have gone to the Title II direction in the first place.
FCC Chairman Ajit Pai noted in a prepared statement that he wasn’t surprised at the outcome. “In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations,” Pai said in his prepared statement, “it is not surprising, as Judges Srinivasan and Tatel pointed out, that the D.C. Circuit would decide not to grant the petitions for rehearing en banc.”
“Their opinion is important going forward, however,” Pai continued, “because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do.”
The decision by the appeals court may not be final. TechFreedom, the non-partisan technology think tank, was the only intervenor in the case and that group wants the decision on reclassification to be heard by the US Supreme Court.