The U.S. Court of Appeals has denied a full-court rehearing of the decision upholding the FCC's Title II reclassification of internet access service, a reclassification new FCC chairman Ajit Pai is planning to reverse anyway.
ISPs and others had asked the full court to reverse 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.
The court cited the Notice of Proposed Rulemaking—approved last week—in denying the en banc review, which courts rarely grant anyway.
Had the court agreed to the re-hearing, the Open Internet debate would have continued on three fronts, the FCC, Congress and the courts, though it will probably ultimately wind up being considered in all three anyway.
"En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order. The agency will soon consider adopting a Notice of Proposed Rulemaking [NPRM] that would replace the existing rule with a markedly different one. In that light," said the court, "the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."
In their concurrence in the denial, two of the judges who rendered the initial decision defended it, not as a matter of a verdict on the policy but on the legality of the FCC's authority to make it.
"Our task is not to assess the advisability of the rule as a matter of policy," wrote judges Srinivasan and Tatel. "It is instead to assess the permissibility of the rule as a matter of law. Does the rule lie within the agency’s statutory authority? And is it consistent with the First Amendment? The answer to both questions, in our view, is yes."
Judge Brett Kavanaugh dissented from the denial of rehearing. He said the rule was unlawful and should have been vacated. Judge Brown also would have granted the rehearing.
“In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations, it is not surprising, as Judges Srinivasan and Tatel pointed out, that the D.C. Circuit would decide not to grant the petitions for rehearing en banc," said Pai of the decision. "Their opinion is important going forward, however, because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do. I also agree with many of the points made by Judges Brown and Kavanaugh in their compelling opinions explaining why the Commission’s Title II Order was unlawful.”