Industry Cert Petitions Seek Supreme Court Review of FCC Title II Net Neutrality Order

The FCC 2015 net neutrality and broadband reclassification order came under attack from critics asking the Supreme Court to review the decisions of the U.S. Court of Appeals for the D.C. Circuit upholding the order, as expected (see 1709280029). The American Cable Association, AT&T, Daniel Berninger, CenturyLink with USTelecom, CTIA and NCTA filed cert petitions challenging the commission's order and appealing D.C. Circuit affirmations. TechFreedom said it also expected to file Thursday, the deadline.

"Based on a quick scan, I see nothing to change my view that this case is unlikely to meet the high bar for Supreme Court review," emailed net neutrality advocate Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. "While Net Neutrality is very important, the legal issues are fairly standard questions of statutory interpretation with no split among the federal appeals courts." The FCC declined comment.

Justices "may be more likely to pay attention to a case in which a large number of petitions are filed because the volume suggests that the case is really, really important," emailed a veteran industry attorney. "There is no requirement at the petition for certiorari stage for parties to join a single filing, as was the case for merits briefing in the D.C. Circuit." The "multitude of petitions also may reflect a decision by the parties to raise different issues for review, in the hope that one or two may attract the Supreme Court’s attention," the lawyer added.

NCTA said the FCC exceeded authority in reclassifying broadband as a Title II telecom service under the Communications Act. The internet "flourished" for decades "under a deregulatory approach mandated by Congress and endorsed by the Commission," said the cable group's brief. "In 2015, however, the Commission reversed course, subjecting broadband Internet access service ('broadband') providers to utility-style regulation under Title II."

Citing 2014 White House actions under President Barack Obama, NCTA said the FCC order wasn't the result of deliberate and reasoned decision-making. "It was the result of an agency scrambling to comply with the President’s preferences and invent post hoc justifications for rewriting a congressional statute, reversing the agency’s own long-standing policy, and contradicting real-world facts," the group said. It also alleged the FCC reversed long-standing policy without substantiating changed circumstances or adequate notice of key decisions.

CenturyLink and USTelecom said the FCC "drastically" expanded its authority through reclassification. The "about-face" was "at odds with Congress’s express directive to maintain a lightly regulated environment in which the Internet could thrive," said their brief. "A divided panel of the D.C. Circuit nevertheless found that the Commission’s power grab was entitled to Chevron deference." They cited D.C. Circuit dissents about why deference wasn't due. Noting the current FCC's open internet review, the ILEC interests said if broadband classification is returned to its "proper" Title I classification, they would file a supplemental brief explaining why the high court should vacate the D.C. Circuit's affirmation on mootness principles.

The American Cable Association said the FCC lacked authority to reclassify broadband under Title II, and the order was arbitrary and capricious, an abuse of discretion, and violated procedural requirements. "This case starkly presents questions concerning the scope and meaning of the 'major questions' doctrine that has emerged from this Court’s decisions," precluding agencies from undertaking regulation of "vast and economic and political significance" absent a clear congressional mandate, said its brief. "That prohibition should have special force" in this case.

CTIA said the FCC unlawfully reclassified mobile broadband as a "commercial mobile service," an argument AT&T also made. "This case is about the future of the Internet, and that future is increasingly wireless," said the cellular group. The FCC inappropriately subjected mobile broadband to common-carrier regulation, CTIA said. "Most astounding and indefensible of all, the Commission took two different networks -- the one comprising 10-digit telephone numbers (the telephone network) and the one comprising Internet Protocol ('IP') addresses (the Internet) -- and declared that they are actually one network, even though millions of users of each network have no ability to communicate with each other. This was not reasoned agency action; it was a floor exercise in statutory gymnastics."

Entrepreneur Berninger said the order "puts an end" to certain internet innovations to create new democratic forums. He said the FCC violated First Amendment free speech rights, exceeded authority and wasn't entitled to judicial deference.