Notwithstanding pending rulemaking proceedings at the FCC which would roll back Title II classification of fixed and mobile broadband access services, several mobile and wireline network and cable groups asked the U.S. Supreme Court late last week to review last year's decision by the D.C. Circuit Court of Appeals to uphold the FCC's Open Internet order which reclassified broadband as a Title II telecommunications service.

Petitions for review of the D.C. Circuit decision were filed by the American Cable Association (ACA), AT&T, wireless association CTIA, the National Cable & Telecommunications Association (NCTA), the U.S. Telecom Association (USTA), and CenturyLink. Adopted in February 2015, the Open Internet order brought about a sea change in the FCC's treatment of Internet access, which the agency had previously classified as a Title I information service that is exempt from pricing, access, and other requirements that apply to Title II common carriers. By a 2-1 margin, a three-judge panel of the D.C. Circuit Court rejected the claims of AT&T, USTA, CTIA and other petitioners that the FCC had provided insufficient opportunity for public comment on Title II reclassification and that FCC approval of the Open Internet Order was "arbitrary, capricious, and an abuse of discretion" within the meaning of the Administrative Procedure Act. The court's majority concluded that consumer perceptions about broadband access "as a stand-alone offering and as providing telecommunications . . . justify the Commission's decision to reclassify broadband as a telecommunications service." Lending further support to Title II classification, the majority also cited the U.S. Supreme Court's 2005 ruling in NCTA v. Brand X, in which the high court decreed that the FCC eventually "would need to conclude that the telecommunications component of broadband was `functionally separate' from the information services component."

Citing, in part, the FCC's pending rulemaking proceeding which seeks to restore the long-standing classification of broadband Internet access as a Title I information service and which could render further court proceedings as moot, the D.C. Circuit refused the petitioners' request for en banc rehearing in a decision handed down last May. While acknowledging the appellate panel's concerns about the impact of a future FCC decision to roll back Title II classification, AT&T advised the high court: "if the FCC fails to act within a reasonable timeframe, or if it reaffirms its current erroneous position, this court should grant plenary review of the questions presented in this petition." AT&T also argued that the D.C. Circuit decision was premised on "a fundamental misreading of Brand X," in which the Supreme Court "affirmed the FCC's discretion only to decide whether a broadband ISP can be said to offer customers (1) only an information service . . . or (2) both an information service (Internet access) and a separate telecommunications service connecting the end user to the ISP facilities."

ACA also took up the Brand X theme, observing that, in Brand X, "there was no dispute that Internet access is an information service because it `enables users, for example, to browse the World Wide Web [and] to transfer files from file archives.'" Meanwhile, in a joint petition, USTA and CenturyLink stressed that the case at hand "focuses on one important and recurring issue of significance" which is "the D.C. Circuit's decision to defer to an FCC ruling arrogating to itself vast regulatory power over a large and growing sector of the U.S. economy, without any indication, much less the clear indication required by this Court's cases, that Congress intended to empower the Commission to make such a change." Although comment was not available from consumer groups and other supporters of the Open Internet order, Robert McDowell, the chief public policy advisor for Mobile Future, remarked that the petitions "highlight the stark need for immediate relief from the harmful impact that Title II is having on investment in the broadband ecosystem."