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USTelecom Seeks Full Court Re-Hearing on Title II

USTelecom, which represents ISPs including AT&T and Verizon, has joined the parade back to a D.C. appeals court to try and get the FCC's Open Internet rules overturned.

Friday was the deadline for en banc (full-court) review by the U.S. Court of Appeals for the D.C. circuit of a three-judge panel decision last month upholding the FCC's reclassification of ISPs as Title II common carriers, including mobile broadband and interconnection.

“USTelecom led the legal challenge to the FCC’s Open Internet order because the agency used a flawed and anti-consumer approach to implement net neutrality standards -- standards that our members have embraced and incorporated into their network operations," said USTelecom president Walter McCormick. "Regrettably, two judges on the appeals court failed to recognize the significant legal failings of the FCC’s decision to regulate the internet as a public utility. USTelecom has asked for an en banc review to help ensure that the FCC does not give itself authority -- which Congress has not granted -- to impose heavy-handed regulation on internet access."

The petition argues the panel “disregarded extensive evidence – including the FCC’s own contemporaneous recognition – that, in passing the 1996 Act, Congress codified pre-1996 regulatory and judicial decisions that barred public-utility regulation of Internet access.”

USTelecom argued that Congress meant to protect the internet from the kind of heavy-handed regulation Title II reclassification represents and says the question of whether or not Congress has delegated the FCC the power to instead "micromanage" the internet "is a question of exceptional importance to the assignment of power within our government — and to the American economy."

Even supporters of the Open Internet court challenges concede en banc review is unlikely, but if the court denies en banc review, it could then be appealed to the Supreme Court, where perhaps the importance of the case might argue for granting the appeal. The deadline for that is 90 days after the initial decision, but for those who file en banc petitions, that deadline becomes 90 days from when the en banc decision is rendered by the D.C. court.