The Supreme Court is the last stop for internet service providers’ lawsuit against the Federal Communications Commission’s net neutrality rules after a federal appeals court refused to rehear the case Monday.
Judges on the D.C. Circuit Court of Appeals declined to rehear the case en banc Monday, upholding last year’s three-judge decision in favor of the rules barring internet service providers (ISPs), like Comcast and AT&T, from blocking, throttling, or prioritizing web traffic.
The case will not go before the full panel of judges on the D.C. Circuit, as was petitioned by ISPs and others, and makes the Supreme Court the last resort for opponents to strike down the rules in court.
“The court today denies en banc review,” Judges Sri Srinivasan and David Tatel, who upheld the rules in the original case, wrote in the court’s decision. “En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order. The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one.”
FCC Chairman Ajit Pai announced his plan last week to roll back the rules passed under his predecessor Democrat Tom Wheeler, which includes repealing broadband’s reclassification as a public utility (subjecting it to potentially tougher regulation) and putting the Federal Trade Commission back in charge of overseeing ISPs.
Pai’s order repeals other broad authority to police the practices of ISPs but asks for comment on whether to keep, modify, or erase the bright-line rules against content blocking, throttling, or prioritizing.
“In light of the fact that the commission on May 18 will begin the process of repealing the FCC’s Title II regulations, 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,” Pai said Monday. “Their opinion is important going forward, however, 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.”
Srinivasan and Tatel said it was within the FCC’s authority to reclassify broadband, and that the 2015 Open Internet Order was not a violation of the First Amendment, as opponents argued in court.
“Does the rule lie within the agency’s statutory authority? And is it consistent with the First Amendment? The answer to both questions, in our view, is yes,” the decision reads.
Circuit Judges Janice Rogers Brown and Brett Kavanaugh dissented, arguing the Supreme Court has upheld the need for congressional authority to enact rules like net neutrality and that the First Amendment guarantee of free speech entitles ISPs to control traffic. Providers themselves made the same arguments to the court in 2015.
“As to the first, the Supreme Court, far from precluding the FCC’s Order due to any supposed failure of congressional authorization, has pointedly recognized the agency’s authority under the governing statute to do precisely what the Order does,” Srinivasan and Tatel wrote.
“As to the second,” they continued, “no Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule—i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP’s own commercial preferences.”
While net neutrality supporters celebrated and opponents lamented the ruling, all referenced Pai’s pending order at the FCC as the next stage of the fight.
“The D.C. Circuit has once again confirmed that the FCC’s Open Internet rules are lawful and supported by the evidence,” Public Knowledge senior counsel John Bergmayer said. “Now, the primary threat to these important consumer protections is FCC Chairman Pai’s determination to roll them back, and to hand more power to monopolistic internet access providers.”
USTelecom, the broadband trade group that led the court challenge, was “gratified that three of the D.C. Circuit judges wanted to rehear the case and that the FCC itself is now considering new rules to move back to investment and consumer-friendly net neutrality policies.”
“At the end of the day, we agree with Judge Brown that when it comes to establishing a vision for the internet, any ‘orthodox view of checks and balances leaves the choice of vision to Congress,’” USTelecom CEO Jonathan Spalter said.
Spalter said the group is still weighing its legal options, but the conservative tech lobby TechFreedom, which also participated in the court challenge, said it’s already gearing up for the Supreme Court.
“We’re gratified to see that both dissenting judges focused on the argument made by TechFreedom alone: that the FCC’s power over the internet is a ‘major question’ on which courts ought not grant normal Chevron deference to the agency,” TechFreedom President Berin Szoka said, referring the the Supreme Court decision that affirmed deferring to the expertise of a government agencies to interpret a statute it administers.
“We look forward to taking that question to the Supreme Court — and untangling the complicated technical and legal distinctions that the majority of the appeals court misunderstood,” Szoka said. “If the high court takes the case, Chairman Pai should allow the Justices to resolve critical questions about the FCC’s authority.”
According to Szoka, a Supreme Court ruling against the order could be the only way to convince Democrats to finally compromise with Republicans on net neutrality legislation, and prevent a future Democratically controlled FCC from reclassifying broadband again.