Cable, Wireless Industries Try Yet Again To Take Net Neutrality To Court

Image courtesy of Tom Richardson

We have had had net neutrality as the law of the land for over a year now. Lawsuits immediately followed its implementation, of course, but the appeals court took the FCC’s side. So if you’re industry and you’re still ticked off, what’s left? Ask for a do-over… if you can get one.

A big bunch of trade and industry groups representing the wireless, cable, and telecom industries today filed their next attempt to have the FCC’s Open Internet Rule — net neutrality — overturned.

The actual request is called a petition for an en banc review. Basically, the idea is that an appeals court case, except at the Supreme Court level, is heard and ruled on by a set of three judges, not by the entire court. Asking for an en banc review means they’re asking for all (or most, if there are more than 15; DC has 17) of the judges in the circuit to rehear the case together.

USTelecom and CenturyLink filed the first petition (222-page PDF) this morning, and have since been joined by American Cable Association and the CTIA and NCTA — respectively, the wireless industry’s and cable industry’s big trade and lobbying groups.

USTelecom president Walter McCormick, announcing the filing, said in a statement that it’s leading the legal challenges “because the agency used a flawed and anti-consumer approach to implement net neutrality standards.”

“Regrettably,” McCormick continued, “two judges on the appeals court failed to recognize the significant legal failings of the FCC’s decision to regulate the internet as a public utility. USTelecom has asked for an en banc review to help ensure that the FCC does not give itself authority — which Congress has not granted — to impose heavy-handed regulation on internet access. Reclassifying broadband access as a public utility service reverses decades of established legal precedent which has been upheld by the Supreme Court.”

The NCTA, on the other hand, seems just as tired of this nonsense as the rest of us are (despite pursuing it anyway). In a blog post, they write, “We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC.”

The post continues by actually saying that net neutrality is super great! “We aren’t challenging the specific net neutrality protections,” which is good because they’d almost certainly lose based on the legal history so far. Instead, they’re tackling procedure: “Regrettably,” — there’s that word again — “the 2015 Order abruptly and unreasonably abandoned that long-established precedent, reverting to an outdated regulatory framework. Quite simply, as regulators for decades have acknowledged and consistently determined, dynamic Internet networks do not resemble or deserve to be treated like archaic telephone systems.”

“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,” it concludes.

FCC chair Tom Wheeler, however, is not having it. In his statement, Wheeler called it “no surprise” that industry is trying yet again.

If the court does take up the petition, Wheeler said, “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 reasoned decision-making upon which they are based, and the adequacy of the record from which they were developed.”

That said, legal analysts across the board think this petition is a long shot at best. Loads of folks who lose an appeals case request an en banc hearing, but very, very few actually get one. Tactically speaking, this petition is basically the industry’s best chance to keep presenting the question of whether or not the FCC can do this thing (that they already did more than a year ago), in hopes of maybe eventually being heard by the Supreme Court.