Trade Groups Petition for Rehearing on Title II, Net Neutrality

After a federal appeals court upheld the Federal Communication Commission’s net neutrality rules, the NCTA, CTIA, USTelecom and the American Cable Association — all the trade organizations representing U.S. Internet service providers — challenged that ruling. They did so by filing a petition for an “en banc” rehearing with the U.S. Court of Appeals for the D.C. Circuit. En banc hearings are to rehear a case in front of all the judges (rather than a panel), usually in cases of “exceptional public importance.”

Variety notes that, in this case, the petition for an en banc rehearing would be “regarding the FCC’s 2015 order to reclassify broadband Internet access service as a common carrier service under Title II of the Communications Act.” Last month, a three-judge panel of the D.C. Circuit Court of Appeals ruled 2-1 in favor of the FCC net neutrality rules, noting that the government agency is “within its authority to enact the rules requiring ISPs to treat all traffic equally.”

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From the ISPs’ point of view, however, with net neutrality rules, the FCC “oversteps its legal bounds, and opens the door for the agency to impose restrictions that would thwart their investments in network infrastructure.”

“We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC,” notes the NCTA.

FCC chairman Tom Wheeler, who has championed net neutrality, retorted that, “it comes as no surprise that the big dogs have challenged the three-judge panel’s decision. 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.”

The Open Internet Order in question, which dates from February 2015, forbids ISPs from blocking or slowing down traffic as well as “engaging in paid prioritization, or creating fast lanes and slow lanes online based on how much content providers are willing to pay.” NCTA says it is not “challenging the principles of net neutrality” but, rather, “objects to the reclassification of broadband as a Title II telecommunications service,” which it believes is “an outdated regulatory framework.”

“Dynamic Internet networks do not resemble or deserve to be treated like archaic telephone systems,” says the NCTA. “Because the FCC Order was such a monumental departure from the FCC’s successful tenure of overseeing broadband Internet networks that have seen tremendous investment, expansion and innovation, we seek rehearing of these critical issues.”

If the bid for an en banc rehearing fails, the groups can try to appeal to the Supreme Court. The trade organizations have also asked Congress to “introduce legislation clarifying the rules of the road for net neutrality.”