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Tech Companies, Nonprofits Appeal Net Neutrality Ruling (1)

Dec. 13, 2019, 6:34 PM; Updated: Dec. 13, 2019, 10:10 PM

Tech companies, public interest groups, and other entities that sued to block the FCC’s scrapping of net neutrality rules have asked the D.C. Circuit to reconsider its decision upholding the rollback of the Obama-era requirements.

The petitioners Dec. 13 asked for a rehearing by either the full U.S. Court of Appeals for the District of Columbia Circuit or a court panel. Mozilla Corp. and Vimeo Inc., the Computer & Communications Industry Association, Public Knowledge, and the National Hispanic Media Coalition were among the petitioners.

A three-judge D.C. Circuit panel Oct. 1 upheld most of the Federal Communications Commission’s 2017 order, including rescinding rules that banned internet service providers like AT&T Inc. from blocking or slowing internet traffic on their networks. The panel overturned part of the order that imposed an outright ban on states enacting their own net neutrality laws.

“Although the court came to the right conclusion on some key issues, such as the FCC’s lack of authority to preempt state net neutrality rules, in other ways it gave the FCC the benefit of the doubt too many times,” John Bergmayer, legal director at Public Knowledge, said in a statement. “While agencies should be given deference where appropriate, they do not have the authority to rewrite the law or come to illogical, results-driven conclusions.”

An FCC spokeswoman said in an email the agency is “confident” the decision will “stand and that we will continue to have a free and open Internet moving forward.”

Light Touch or Utility

At issue is whether the FCC can treat ISPs like a lightly regulated information service or classify them under a more stringent part of communications law, as they were during the Obama administration. The D.C. Circuit said it was bound by a 2005 Supreme Court decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services to uphold the FCC’s repeal order. The decision gave the agency discretion over regulating cable modem services.

Tech companies and nonprofits argue that the D.C. Circuit isn’t actually constrained by the Supreme Court to side with the FCC.

“Two of the three judges on the DC Circuit panel reluctantly upheld the FCC’s repeal of Net Neutrality rules because they are bound by the Supreme Court’s Brand X precedent,” Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, one of the petitioning nonprofits, said in a statement. “The rehearing petitions filed today invites those judges and their colleagues to reconsider this analysis.”

Judge Patricia Millett wrote in a concurring opinion that she had a “substantial reservation” in upholding the repeal order, but that the court was bound by the Supreme Court. Judge Robert Wilkins came to a similar conclusion.

The ruling—a victory for ISPs that argue the rules were a regulatory burden and hampered investment—was a blow to tech companies like Facebook Inc. and Amazon.com Inc. They say it lets ISPs slow their internet connections while prioritizing their own or a business partner’s content.

The National Hispanic Media Coalition’s petition seeks rehearing on the grounds that the D.C. Circuit panel failed to consider alleged procedural violations by the FCC.

The case is: Mozilla Corp. v. FCC, D.C. Cir., No. 18-01051, briefs 12/13/19

(Updated with additional reporting throughout)

To contact the reporter on this story: Jon Reid in Washington at jreid@bloomberglaw.com

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com

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