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Title II Proponents Fight Back

WASHINGTON — Supporters of the FCC’s Open Internet order took shots at the longshot effort by Internet-service providers to get a full-court rehearing of the decision to uphold the agency’s reclassifying them as common carriers under Title II of the Communications Act.

Netflix — which benefited from the Federal Communications Commission’s decision that interconnection was also a Title II service subject to its oversight — joined with Dish Network, competitive broadband provider trade group INCOMPAS, local regulatory commissioners and others to tell the court what it thought of that challenge.

Pantelis Michalopoulos, a lawyer for the companies that participated in the original argument before the U.S. Court of Appeals for the D.C. Circuit, says that there is nothing for the court to rehear, “en banc or otherwise.” (“En banc” means the full court. The initial decision was by a three-judge panel.)

“The Open Internet is important, and so are the Open Internet Rules,” Michalopoulos said following the filing with the court from Netflix et al. “But the legal analysis that led the Court to affirm the rules was ordinary. It followed to the letter the Supreme Court’s and the D.C. Circuit’s own precedent.”

He said the court answered a simple question: Did the FCC act reasonably when it concluded that broadband access was a telecommunications service? The court’s answer — which was yes — is simply applying the deference to the agency that is common for the D.C. Circuit and that Supreme Court alike.

That deference is so-called Chevron deference, which says courts will give agencies the benefit of the doubt on subjects on which those agencies are expected to have expertise, such as the FCC for the telecom industry.

ISPs have pointed out in response that “deference” is not unlimited and that the Supreme Court itself has recently signaled that fact.