FCC/DOJ Urge DC Circuit to Reject Industry Appeals of Panel Net Neutrality Ruling
The FCC and DOJ said an appellate court should deny industry appeals of a ruling upholding the commission's 2015 net neutrality and broadband reclassification order. The three-judge panel carefully examined industry objections to the order and "rejected them in their entirety," said the FCC/DOJ response (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit in USTelecom et al. v. FCC, No. 15-1063 and consolidated cases. The panel's ruling was "entirely correct" and consistent with Supreme Court analysis in its 2005 NCTA v. Brand X decision and the D.C. Circuit's precedent in two previous net neutrality decisions, Comcast v. FCC in 2010 and Verizon v. FCC in 2014, the government said.
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The Supreme Court said the Communications Act "fails unambiguously to classify" broadband service as either a Title I information service or a Title II telecom service, leaving federal policy "in this technical and complex area to be set by the commission," the FCC/DOJ wrote. In its 2015 order, the commission said broadband internet access service is a Title II telecom service, subjecting broadband ISPs to some common carrier regulation. Even D.C. Circuit Judge Stephen Williams, who partially dissented from the panel's majority opinion, "agreed the FCC 'has statutory authority to classify broadband as a telecommunications service,'" the government response said. It said the panel appropriately affirmed the commission's "decision to classify mobile broadband as a commercial mobile service subject to common carrier treatment.”
The panel's ruling "does not conflict with any decision of the Supreme Court, this Court, or any other court of appeals," the response said: The decision "turned on a careful and considered evaluation of the record and the FCC’s predictive judgment regarding the effects of its Order on the internet marketplace." In the panel's majority opinion, Judges David Tatel and Sri Srinivasan granted the FCC considerable deference and found its arguments reasonable (see 1606140012).
“The panel thoroughly analyzed and properly rejected every one of petitioners’ challenges to the FCC’s Order adopting open internet rules," the FCC/DOJ response said. "The panel found that: (1) the Commission had authority to reclassify fixed and mobile broadband internet access as common carrier telecommunications services; (2) such reclassification was reasonable; (3) the agency provided parties with notice that it might reclassify broadband as a telecommunications service, and that its rules might reach interconnection disputes; (4) the Commission’s rules do not violate the First Amendment; and (5) section 706 of the 1996 [Telecommunications] Act gives the Commission authority to adopt its open internet rules to promote broadband deployment. Petitioners have provided no reason to reconsider these rulings.”
Petitions for rehearing were filed by Alamo Broadband, AT&T, CTIA, NCTA and the American Cable Association, and USTelecom and CenturyLink, plus TechFreedom and other intervenors. They made numerous arguments for why the D.C. Circuit should grant rehearing and overturn the panel ruling. Court watchers believe it's very unlikely the D.C. Circuit will grant rehearing, though some FCC critics voiced more hope there could be some further dissents that would increase the chances of Supreme Court review (see 1608020045 and 1608170046).