Carriers and trade associations connected with the fixed and wireless telecommunications industries joined cable operators last Friday in petitioning the D.C. Circuit Court for en banc review of a D.C. Circuit panel’s recent decision to uphold the FCC’s net neutrality rules promulgated in the agency’s 2015 Open Internet order. That order reclassified broadband Internet network services as telecommunications services pursuant to Title II of the 1934 Communications Act. Parties requesting an en banc hearing by all nine D.C. Circuit judges include wireless association CTIA, AT&T and Alamo Broadband, Inc. Joint petitions were also filed by (1) the U.S. Telecom Association (USTA) and CenturyLink, and (2) the American Cable Association (ACA) and the National Cable & Telecommunications Association (NCTA).
On June 14, by a 2-1 margin marked by a lone dissent by Senior D.C. Circuit Judge Stephen Williams, a three-judge D.C. Circuit panel rejected legal challenges filed by USTA, AT&T, CTIA and a host of other parties against the Open Internet order. Dismissing petitioners’ claims that the Open Internet rules are “arbitrary, capricious and an abuse of discretion” within the meaning of the Administrative Procedure Act (APA) and that the FCC provided insufficient opportunity for public comment on its intention to pursue Title II reclassification, the court’s majority concluded (among other things) that consumer perceptions about broadband access “as a standalone offering and as providing telecommunications . . . justify the Commission’s decision to reclassify broadband as a telecommunications service.”
In petitioning for en banc review, however, USTA and CenturyLink argued that the majority “disregarded extensive evidence . . . that, in passing the 1996 [Telecommunications] Act, Congress codified pre-1996 regulatory and judicial decisions” that had treated Internet services as Title I information services. As such, USTA and CenturyLink asserted that “en banc review is necessary to ensure that the FCC wields only the power that Congress granted it.” As it argued against Title II reclassification, AT&T also objected to the majority’s decision to uphold the FCC’s “separate conclusion that mobile broadband services are ‘interconnected’ with ‘the public switched network,’ a prerequisite under Title II for subjecting them to common carrier regulation.” Observing that the majority based its ruling on “the notion that mobile broadband service . . . is ‘interconnected’ because customers with broadband access can use thirdparty applications to call ordinary telephone numbers,” AT&T declared that the majority’s reasoning contravenes “the FCC’s logic for reclassifying broadband as a telecommunications service in the first place, which was that broadband service consists solely of transmission to and from the Internet.” Spotlighting what they termed as the FCC’s failure to justify a Title II regulatory track, ACA and NCTA lamented that, “over Judge William’s forceful dissent, the majority blessed the FCC’s abandonment of its settled policy, disclaiming any duty to decide whether the supposedly changed facts the FCC cites were ‘really . . . new.’” ACA and NCTA further charged that the majority’s conclusions “contradict Supreme Court and Circuit precedent and leave in place an order that radically reshapes federal law.”
Declaring the submission of en banc petitions “comes as no surprise,” FCC Chairman Tom Wheeler told reporters, “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.”