WASHINGTON — A look at the recent filings from ISPs asking a federal appeals court to take another look at the FCC’s Title II decision makes clear how important they think it is to keep challenging the reclassification of Internet access as a common-carrier service under that section of the Telecommunications Act.
These are the same folks who agreed to the Federal Communications Commission’s compromise bright-line network-neutrality rules under a non-Title II approach — admittedly as the lesser of two evils — and have been trying to get back to that original compromise ever since FCC chairman Tom Wheeler and his fellow Democrats chose the “nuclear” option of Title II.
But while that concern is clearly real, the ISPs’ driving home of the importance of the case in those filings is also a legal calculation — one meant to be a signal to the U.S. Supreme Court if the case eventually winds up there.
DIVVYING UP ARGUMENTS
Cable and telecom Internet-service providers divided up their arguments this time around, filing at least four separate petitions asking the full U.S. Court of Appeals for the D.C. Circuit to review last month’s three-judge decision to uphold the Open Internet order.
That FCC order included bright-line rules against blocking, degrading and anticompetitive paid prioritization, as well as a general-conduct standard to target other potential threats to the Internet’s so-called virtuous circle. The bright-line rules are also being applied to mobile broadband for the first time, and interconnections are being considered under Title II on a case-by case basis.
Each petition targets a different issue. CTIA—The Wireless Association, which represents cellphone carriers, is focusing on applying the regulations to mobile for the first time, which it says the FCC can’t do.
Cable’s main trade groups — the National Cable & Telecommunications Association and the American Cable Association — are focusing on procedure, arguing that the FCC failed to justify its 180-degree turn from non-Title II-based rules and illegally failed to give notice of “key aspects” of that change.
But they share the common theme that this is a huge, potentially historic decision.
In its filing, telco trade group USTelecom cited the FCC’s Republican commissioners as calling the agency’s decision, and by extension the court’s upholding of that decision, a “monumental shift” toward government control.
USTelecom said the decision on whether Congress deeded the FCC that power is “is a question of exceptional importance to the assignment of power within our government.” The court did not rule on the wisdom of the FCC’s Title II approach, only that it was within its authority to make the decision, and that the decision was not arbitrary and capricious.
The NCTA and ACA call the Title II ruling “one of the most consequential telecommunications rulemakings in American history” and said the court panel’s decision to uphold it “eviscerates” procedural protections.
CTIA, which represents wireless carriers, called it an issue of “exceptional importance” whose impact on the country will be immense.
Given that it would be unusual to grant an en banc rehearing with the full appeals court, billing the decision is an effort to get that court to weigh in, but beyond that, it is a signal to the Supreme Court.
The highest court will generally weigh in to clear up splits that occur when two appeals courts disagree, but that is not the case here.
HOPE SPRINGS FROM ‘BURWELL’
A recent Obamacare decision out of the Supreme Court, though, appeared to buttress the “major questions” doctrine.
Of that decision, called King v. Burwell, attorney Adam White of Boyden Gray said in a post on Scotusblog that “[c]ourts will need to ask whether the policy matter at hand is of such economic or political significance that it cannot be presumed to have been committed to the agency’s discretion by Congress.” ISPs are banking on meeting that threshold.
Courts have generally given significant, so-called Chevron deference to federal agencies as the subject-area experts per another Supreme Court decision. ISPs are hoping the Burwell decision signals a new carve-out for important decisions.
Andrew Schwartzman, a veteran attorney who backs the Open Internet rules, called that view a stretch. “The idea of using this case [Burwell] for such a challenge is ridiculous. The Supreme Court has already said [in Brand X] —when it narrowly upheld the FCC’s earlier classification of ISPs as information services — that the reclassification issue was properly delegated to the FCC. I doubt that there is any other statute in the last few decades which so clearly delegated so much to the FCC for decision.”
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