The U.S. Appeals Court for the District of Columbia on Monday declined petitions from wireless telco interests CTIA, USTelecom, and cable association NCTA asking the court to revisit challenges to the FCC’s Open Internet Order.
Filed in July, the petitions asked the court for an en banc rehearing of the case after a three-judge panel upheld the FCC’s net neutrality rules in June. An en banc hearing would have brought the case before the full nine-member court of appeals.
In its petition, CTIA argued the FCC with its Open Internet Order “unlawfully reclassified mobile broadband based on a radical and untenable reimagination of ‘interconnected’ service,” and said the reasoning of the three-judge panel who upheld the rules was flawed.
But the court said a rehearing at this stage would be pointless given FCC Chairman Ajit Pai’s move to repeal the rules.
“En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order,” the court wrote in its decision. “The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one. In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.”
But not all the judges in the court were against a rehearing. Judges Brown and Kavanaugh voted in favor of a rehearing, arguing congressional authorization is required for rules like net neutrality.
“Congress did not clearly authorize the FCC to issue the net neutrality rule,” Kavanaugh wrote in a dissent. “Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common carrier obligations on internet service providers. The lack of clear congressional authorization matters. In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind.”
While Judge Srinivasan in the majority opinion called Kavanaugh and Brown’s dissents “misconceived,” Pai in a statement lauded the pair’s “compelling opinions explaining why the Commission’s Title II Order was unlawful.” Pai, however, was also careful to value the opinion of the majority, which he said was important for the Commission’s future plans for classification of internet services.
“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. 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,” Pai said.
The FCC is expected to vote on Pai’s Notice of Proposed Rulemaking to undo Title II reclassification at its meeting later this month.
Filed Under: Industry regulations + certifications