Opponents of the FCC’s Open Internet order, which reclassified broadband Internet services as telecommunications services under Title II of the 1934 Communications Act, plan to seek Supreme Court review of a D.C. Circuit appeals court ruling denying en banc rehearing of that court’s decision last year to uphold the reclassification. All but three members of the full D.C. Circuit panel participated in the decision, which was handed down Monday. The ruling follows on FCC Chairman Ajit Pai’s announcement last week that the agency will launch rulemaking proceedings on May 18 to reinstate the classification of broadband Internet access as a Title I information service.
Citing the FCC’s adoption of “a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one,” the D.C. Circuit judges who voted against rehearing concluded that en banc review would be “particularly unwarranted at this point.” In a concurring opinion defending their initial decision to uphold the Open Internet Order, Circuit Judges Sri Srinvasan and David S. Tatel also explained that the task of the court is not “to assess the advisability of the [Open Internet rules] as a matter of policy” but, instead, “to assess the permissibility of the rule as a matter of law.” Questioning, “does the rule lie within the [FCC’s] statutory authority” and “is it consistent with the First Amendment,” Srinvasan and Tatel proclaimed: “the answer to both questions, in our view, is yes.” Judge Brett Kavanaugh, however, countered that the Open Internet order is “unlawful and must be vacated” as “Congress did not clearly authorize the FCC” to regulate neutrality or impose common carrier obligations on broadband ISPs pursuant to Title II. Judge Janice Rogers Brown also dissented, charging that the FCC—after adhering to the long-standing “light touch” regulatory policy prescribed by the Telecommunications Act of 1996—“was pressured into rejecting this decadeslong, light-touch consensus in favor of regulating the Internet like a public utility.”