Courts

NCTA Appeals Net-Neutrality Decision to SCOTUS

But says court should moot petition if FCC reclassifies ISPs under Title I 9/28/2017 1:54 PM Eastern

Cable/broadband operators have asked the Supreme Court to hear their challenge to the federal appeals court decision upholding the FCC's Title II reclassification of ISPs.

NCTA-The Internet and Television Association, filed a cert petition with the court Thursday, which is its request that the High Court review the U.S. Court of Appeals for the District of Columbia decision on the 2015 Open Internet Order.

The move comes as the new FCC chair, Ajit Pai, has proposed to roll back that classification. The petition recognizes that and advises the court that if the FCC does reclassify ISPs as Title I information services, the court should vacate its original judgment and dismiss the NCTA cert petition as moot.

NCTA said the Tom Wheeler FCC's decision to reclassify ISPs under Title II common-carrier regs was an arbitrary and capricious reversal of long-standing policy without changed circumstances that would justify it; that the FCC violated the Administrative Procedures Act by failing to give adequate notice of its shift to Title II; and that the FCC was exceeding its authority.

NCTA said in explaining why the Supremes should hear the appeal: "The divided panel decision in this case upheld a Commission order that claims unprecedented authority to regulate the Internet. That order — one of the most consequential rulemakings in American history — was not the culmination of a deliberate process and reasoned decision-making. Rather, 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."

Also filing a cert petition was USTelecom, which suggested that the FCC lacked the clear congressional authorization "to impose Title II on internet access."

It said the court should grant the petition to "to vindicate Congress’s scheme of sharply limited regulation for broadband and, more generally, to ensure that courts do not permit unelected agencies to expand their regulatory powers over important aspects of the national economy without clear congressional authorization.”

In May, the D.C. Court denied a petition by ISPs and others for en banc (full court) review of the three-judge panel decision that the FCC had reasonably defended its decision to reclassify ISPs as common carriers. The three judges that had made that decision were Judges David Tatel (who was on the panel that rejected the previous net-neutrality rules), Sri Srinivasan and Senior Judge Stephen Williams.

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