Does this man look worried to you? Image: U.S. Mission Photo/Eric Bridiers/Flickr

Big Telecom Wants a DC Circuit Net Neutrality Review. Here’s Why That’s Unlikely

The broadband industry is not taking its recent net neutrality defeat lying down.

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Jul 29 2016, 6:46pm

Does this man look worried to you? Image: U.S. Mission Photo/Eric Bridiers/Flickr

The nation's largest cable and telecom industry trade groups on Friday asked a federal court for a rare "en banc" review of last month's decision upholding US rules protecting net neutrality, the principle that all content on the internet should be equally accessible to consumers.

The industry petitions come six weeks after a three-judge panel of the US Court of Appeals for the District of Columbia issued a landmark ruling affirming Federal Communications Commission rules barring cable and phone companies from favoring certain internet services over others.

Friday's petitions, which request a hearing by the full DC Circuit Court of Appeals, were filed by USTelecom, the National Cable and Telecommunications Association, the American Cable Association, and wireless trade group CTIA, which collectively represent the nation's largest cable and phone companies.

The filings represent the latest skirmish in a decade-long conflict between the nation's telecom titans, federal regulators, and public interest groups over how best to regulate companies like Comcast, AT&T and Verizon. US broadband giants have long argued that the FCC's net neutrality policy is an example of regulatory overreach that will stifle innovation and reduce their appetite to invest in next-generation services.

"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," USTelecom President Walter McCormick said in a statement.

En banc reviews are extremely rare, and "are not favored and ordinarily will not be ordered except to secure or maintain uniformity of decisions among the panels of the Court, or to decide questions of exceptional importance," according to Federal Rule of Appellate Procedure 35(a), as cited in the DC Circuit's Handbook of Practice and Internal Procedures.

Such reviews "consistently make up less than 1 percent of the caseload of the federal circuit courts. In 2010, for example, en banc decisions accounted for only 0.146 percent of the cases decided by the federal circuit courts," according to a 2014 Fordham Law Review article by Alexandra Sadinsky, then a J.D. Candidate at Fordham Law School.

"The likelihood that the full DC Circuit would agree to rehear the case, much less reverse the panel's decision, is extremely remote," Andrew Schwartzman, Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation, wrote in a recent article.

"The DC Circuit typically agrees to rehear a case only a few times each year, at most, usually where there is a sharp split on an important issue on which other circuits have taken a different stance," Schwartzman wrote. "This case doesn't meet those criteria and thus starts out as a particularly poor candidate for rehearing."

If the DC Circuit refuses to grant an en banc hearing, the broadband industry will then have 90 days to file petitions for certiorari asking for the Supreme Court to review the case.

The FCC's rules prohibit cable and wireless companies from blocking or throttling internet content, and from striking paid prioritization deals favoring certain content. In a statement, FCC Chairman Tom Wheeler expressed confidence that the agency's rules will withstand the latest industry challenge.

"It comes as no surprise that the big dogs have challenged the three-judge panel's decision," Wheeler said. "We are confident that the full court will agree with the panel's affirmation of the FCC's clear authority to enact its strong Open Internet rules, the reasoned decision-making upon which they are based, and the adequacy of the record from which they were developed."

Open internet advocates argue that without net neutrality, the emergence of the next Netflix or Skype might be imperiled, because broadband providers could discriminate against such services in favor of their own offerings. Free speech advocates say that the FCC's policy is necessary to maintain the internet as an open platform for political organizing and activism.

The broadband industry is particularly opposed to the FCC's decision to reclassify broadband companies as "common carriers" under Title II of the Communications Act. By doing so, the FCC claimed the authority to apply utility-style regulations originally intended for traditional phone companies to broadband firms.

In his statement, McCormick said the DC Circuit "failed to recognize the significant legal failings of the FCC's decision to regulate the internet as a public utility." He added that "reclassifying broadband access as a public utility service reverses decades of established legal precedent which has been upheld by the Supreme Court."

Matt Wood, policy director at DC-based public interest group Free Press, blasted the broadband industry's latest attempt to overturn the FCC's rules. "These requests for en banc review are sour grapes from industry dead-enders who are determined to dismantle the FCC's successful Net Neutrality rules in spite of their many failed attempts," Wood said in a statement.

There is no fixed timeline for the DC Circuit to respond to the broadband industry's petitions. Federal courts typically respond to en banc requests within a few weeks, but given the fact that August is a slow month for the federal bench, the court could wait until September or even October to respond, according to Schwartzman.