As expected, trade associations representing U.S. Internet service providers launched legal challenges Friday seeking to overturn a federal appeals court ruling that upheld the FCC’s net neutrality rules.
The groups — the National Cable & Telecommunications Assn., CTIA, USTelecom and the American Cable Assn. — filed petitions for an en banc rehearing with the U.S. Court of Appeals for the D.C. Circuit regarding the FCC’s 2015 order to reclassify broadband Internet access service as a common carrier service under Title II of the Communications Act.
The big service providers have argued that the FCC’s net neutrality action oversteps its legal bounds, and opens the door for the agency to impose restrictions that would thwart their investments in network infrastructure. “We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC,” the NCTA said in a statement.
The move comes after a three-judge panel of the D.C. Circuit Court of Appeals last month ruled 2-1 in favor of the FCC’s net neutrality rules, with the majority finding that the agency followed proper procedure and was within its authority to enact the rules requiring ISPs to treat all traffic equally.
FCC Chairman Tom Wheeler, who has championed the net neutrality cause, said in a statement, “It comes as no surprise that the big dogs have challenged the three-judge panel’s decision. 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 FCC’s Open Internet Order, adopted in February 2015, bans Internet providers from blocking or slowing down traffic. The rules also prohibit ISPs from engaging in paid prioritization, or creating fast lanes and slow lanes online based on how much content providers are willing to pay.
According to the NCTA, the group is not challenging the principles of net neutrality. Rather, it objects to the reclassification of broadband as a Title II telecommunications service, which NCTA labeled an outdated regulatory framework.
“Quite simply, as regulators for decades have acknowledged and consistently determined, dynamic Internet networks do not resemble or deserve to be treated like archaic telephone systems,” the NCTA said. “Because the FCC Order was such a monumental departure from the FCC’s successful tenure of overseeing broadband Internet networks that have seen tremendous investment, expansion and innovation, we seek rehearing of these critical issues.”
If the trade groups fail in their bid to have the case reheard by the D.C. Circuit, they may appeal to the Supreme Court although the vacancy left by the death of Justice Antonin Scalia makes it uncertain that the court would take the case. The industry’s lobbying orgs have also called on Congress to introduce legislation clarifying the rules of the road for net neutrality. Meanwhile, the presidential election could determine how the issue is resolved, as Hillary Clinton supports the FCC’s net neutrality action while Donald Trump may favor dismantling the regulations.