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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.
U.S. Court Upholds FCC Net Neutrality Rules, but Appeals Are Certain
Such a challenge could mean the FCC gets sued by one or more of the parties in the case (or anyone else for that matter), thus embroiling the agency in a long chain of lawsuits. Then the biggest challenge for the FCC would be to keep trying to enforce its reclassification while fighting any court-ordered stays that emerge.
It’s fair to say whole Title II reclassification effort by the FCC is getting mired in a legal morass. The legal challenges will take at least another year to be resolved—if the courts move with great dispatch and if most of the challenges are dispensed with quickly. But if you’ve watched the interplay of federal agencies and the federal courts at all, then you know it’s highly unlikely such speed and dispatch will ever happen.
What’s more likely to happen is that the FCC will descend into regulatory purgatory, where most Title II action becomes impossible as the appeals and lawsuits stack up.
Whether this legal morass will have any effect on Internet services or users remains unclear. Some pundits predict investment in the Internet will stall because of the uncertainty. Others predict it won’t. Christopher Yoo, professor of Law, Communication, Computer and Information Science at University of Pennsylvania, predicts problems.
“Today’s court decision upholding the FCC’s 2015 Open Internet Order will likely have a number of unfortunate consequences,” Yoo suggested in an email. “Over the long run, the decision likely will preempt new services that deliver video or other types of content in innovative ways. Limiting Internet service providers’ ability to manage their networks also threatens to exacerbate the digital divide.”
The sad fact is that none of this had to happen. While the FCC was contemplating what direction to take with net neutrality, there was a bipartisan bill working its way through the House of Representatives that would define the specific power the FCC has to regulate the Internet, and which would have defined what net neutrality means and doesn’t mean. Work on that bill stopped when the reclassification was announced.
Unfortunately, the lack of Congressional direction has simply ensured the agencies make up the rules as they go along. While the FCC might be exceeding its authority with the reclassification— which I personally think it is— the fact is something needs to be done to protect Internet users from exploitation by a near-monopoly service providers.
Congress has failed to act and FCC has acted. But it may not be able to make its actions stick. Whatever form net neutrality will take is in abeyance for another year. But a year from now there will be a new presidential administration, a new Congress and perhaps a new FCC. At that point the battle over network neutrality will begin all over again.