ACA Seeks Supremes Review of Net Neutrality Decision

The American Cable Association joined NCTA-The Internet & Television Association, USTelecom and others in asking the Supreme Court to hear its appeal of a lower court ruling that the FCC was within its authority to reclassify ISPs as Title II common carriers in the 2015 Open Internet Order.

ACA tells the court that it should hear the appeal because the FCC did an about face on its classification of ISPs as Title I information services over vigorous and multiple dissents in the initial ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, and the decision by the full court not to hear an appeal of that panel decision.

"The D.C. Circuit erred in upholding the FCC's 2015 Open Internet Order, which should have been overturned because the FCC lacked authority from Congress to subject broadband internet service providers to common carrier regulation, failed to adequately justify the change from its previous approach, and entirely failed to take into account that broadband providers had relied on decades of FCC precedent that was eliminated in a flash," said ACA President Matt Polka.

Related: Senators Want Public Comment on Net Neutrality Complaints

ACA tells the court that the Title II ruling has "enormous economic implications—for the American public and providers of internet access services alike." That is because it "raises important legal questions about the scope of the FCC’s legal authority over the internet. And it implicates fundamental questions regarding the scope and nature of judicial review of agency action resolving 'major questions' under Chevron U.S.A., and other precedential cases."

Chevron is the doctrine that courts give deference to the subject matter expertise of agencies, which critics of the doctrine, including Supreme Court Justice Neil Gorsuch, have suggested is courts abdicating their authority over reviewing such decisions.

ACA said that if the FCC votes to reclassify ISPs to a Title I service, the court should vacate the D.C. court decision as moot so it can't be cited as precedent.

ACA points out that others who filed petitions Thursday included "AT&T (focusing on the statutory arguments), USTelecom/CenturyLink (focusing on the Major Questions doctrine); NCTA (focusing on the Administrative Procedure Act violations), Daniel Berninger (VoIP provider focusing on First Amendment issues)."

Sept. 28 was the deadline for filings after Chief Justice John Roberts back in July extended the time for filing those appeals to Sept. 28.

(Photo via Rock1997Image taken on Jan. 18, 2017 and used per Creative Commons 2.0 license. The photo was cropped to fit 16x9 aspect ratio.)

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.