Wireless Industry To Request En Banc Appeal Hearing On Net Neutrality Rules

from the never-ending-fisticuffs dept

After months of anticipation, last June the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's Open Internet Order, an indisputably-massive win for net neutrality advocates. Not too surprisingly, net neutrality opponents have been engaged in histrionics ever since, with ISP loyal allies in Congress doing their best to punish the FCC with a series of senseless, taxpayer funded "accountability hearings" designed specifically to shame the agency for daring to stand up to large, incumbent ISPs. That's when they're not busy trying to gut FCC funding and authority via a rotating crop of sneaky bill riders.

As Mike and I noted in a recent Techdirt podcast on net neutrality, most of these efforts are just lawmakers barking for their campaign contributions. There are really only a few ways for ISPs to effectively kill the rules, one of which being the election of a President who'll restock the FCC with revolving door regulators who'll either try to roll back the rules, or (more likely) will just refuse to enforce them whatsoever.

On the legal front, options are more limited; ISPs like AT&T have stated they'll appeal to the Supreme Court, but with the FCC's legal win relatively solid, the court itself not fully stocked, and the high court just not hearing all that many cases, most telecom lawyers think a win via this path is extremely unlikely. The other option is for carriers to request an en banc review from the full 9-member DC Circuit Court of Appeals. Even though these requests are commonly rejected, it's that latter path that the wireless industry's biggest lobbying and trade association, the CTIA, has started signaling it will take:

"CTIA: The Wireless Association, which represents wireless ISPs, will seek en banc (full court) rehearing of the three-judge panel decision upholding the FCC's Open Internet order reclassifying fixed and mobile broadband as telecommunications services subject to Title II common carrier regs. That is according to a source familiar with the association's thinking. The deadline for seeking that hearing from the U.S. Court of Appeals for the District of Columbia is Friday (July 29), 45 days after the initial decision June 14."

It's likely we'll see appeal requests by numerous incumbent ISP organizations, each using their fifteen-page appeal request to roll the dice on different arguments. But again, telecom lawyers I've spoken to over the last few months don't think the en banc victory is likely, assuming the request for a hearing is even granted.

"I honestly don’t see success," Free Press Research Director S. Derek Turner tells me. "The dissent’s main argument is that the FCC didn’t explain why it was changing its mind, and spent quite a bit of ink on the issue of the market’s competitiveness. But how competitive a market is or is not has no bearing on the classification issue, only the nature of the service itself. The majority opinion does a good job of explaining why the dissenting opinion is off base, noting that the FCC had satisfied the standard in Fox for reversing a prior opinion."

ISPs and their policy wonk allies will obviously try to claim the contrary.

Regardless of the outcome, it remains important for people to understand that net neutrality isn't magically "over" just because of June's court victory. Net neutrality and the quest to keep the Internet relatively open is a fight that will never actually end, because incumbent ISPs will never stop probing for creative new ways to take advantage of their last-mile broadband monopoly. However fatiguing and hyperbole-soaked the net neutrality debate may be, consumers, startups, and small businesses can't afford to tune out now -- or ever.

Filed Under: appeals, dc circuit, en banc, net neutrality
Companies: ctia