FCC on the Clock With Open Internet Response

WASHINGTON — The U.S. Court of Appeals for the D.C. Circuit has given the FCC and its backers until Sept. 12 to respond to the request by the National Cable & Telecommunications Association, USTelecom and others that the full-court reconsider a panel decision upholding the agency’s reclassification of Internet access as a common-carrier service.

The Federal Communications Commission has 30 pages to brief the court on why it should not hear the en banc appeal, and the intervenors on the agency’s behalf had 15 pages.

The en banc appeal, filed July 29, is a long shot. If it is denied, the Internet-service providers will likely appeal to the Supreme Court, looking for the court to view the issue — broadband regulation — as so important that it might weigh in even without a split in lower court decisions, which is the most typical way to get Supreme Court review.

The court will not accept any further responses from the ISPs to the FCC or intervenor briefs.

USTelecom et al., in their filing for en banc review, already took 222 pages, including exhibits, to argue that the court panel was off base in ruling that the FCC’s reclassification was not arbitrary or capricious and that it had authority under the law to do so. It did not reach a conclusion about whether the FCC had made the right policy decision.

But the ISPs say that the correctness of that policy decision — “wrongness,” they would argue — is crucial to the future of the country.

In its petition, USTelecom said: “Whether Congress delegated to the FCC such broad, discretionary authority to ‘micromanage virtually every aspect of how the Internet works,’ is a question of exceptional importance to the assignment of power within our government — and to the American economy.”

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.