Cable and telecom internet service providers, wired and wireless, have signaled they will be filing an appeal by Friday (February 11) of a lower court decision not to block enforcement of California's net neutrality rules, asking a full complement of U.S. appeals court judges to review a panel decision that went against them.
According to a document filed with the U.S. District Court for the Eastern District of California, "by February 11, 2022, plaintiffs/appellants will be filing a petition for rehearing en banc [by the full court] in their appeal of the Court’s February 23, 2021 Order before the 9th Circuit."
Those plaintiffs/appellants are ACA Connects, CTIA, NCTA–The Internet & Television Association and USTelecom.
Cable ISPs had asked the 9th Circuit to overturn a U.S. District Court‘s decision not to grant a preliminary injunction against the California Internet Consumer Protection and Net Neutrality Act.
ISPs had argued that California‘s adoption of rules was preempted by the FCC‘s decision to roll back its rules against blocking, throttling and paid prioritization, which had prompted California to create similar new rules of its own to fill what it saw as a regulatory void.
Also: ACA Connects Makes Its Case Against California Net Neutrality Law
Two weeks ago, the lower court decision to allow the rules to go into effect while the underlying challenge works its way through the courts was upheld by a panel of the 9th U.S. Circuit Court of Appeals.
The three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — agreed with the district court that the FCC lacked the authority to preempt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate in the way it did when broadband was a Title II telecommunications service.
The panel pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting preemption of state net neutrality rules.
Also: California Net Neutrality Law Victory Draws Crowd
The 9th Circuit panel also rejected the ISPs’ contention that the California law was preempted because it conflicted with the underlying FCC policy or because interstate service was the sole province of the federal law. ■
