Public Interest Groups Appeal 6th Circuit Net Neutrality Ruling
The full 6th U.S. Circuit Court of Appeals should overturn its three-judge panel’s decision against the FCC’s 2024 net neutrality order, said an en banc appeal that Public Knowledge, Free Press, the Benton Institute for Broadband & Society, and the Open Technology Institute jointly filed Tuesday. The 6th Circuit should grant en banc review because the January decision creates a circuit split with the 9th Circuit and the D.C. Circuit on whether broadband internet access service (BIAS) falls under Title II of the Telecommunications Act, the appeal said. The 6th Circuit panel “shoehorned its policy preferences into the law, in a slapdash and inconsistent opinion that, if left unchallenged, will eliminate the ability of future regulators to promote universal, affordable competitive broadband access,” Public Knowledge Legal Director John Bergmayer said in a statement.
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Organizations involved in the en banc appeal filed in the original case as intervenors and thus can appeal without the FCC's involvement, Bergmayer said. Under Chairman Brendan Carr, the agency is not expected to support an appeal. “There’s virtually no chance the agency will seek reconsideration or appeal to the Supreme Court,” said Free State Foundation President Randolph May in January (see 2501090008). Boston College law professor Daniel Lyons said in a blog post in January that an appeal by intervenors without FCC participation would mean the courts are unlikely to take the case.
“One silver lining of the Supreme Court’s recent upheaval of decades of administrative law, if it can be called that, is that courts do not need to accord Chairman Brendan Carr’s FCC any meaningful deference,” Bergmayer said. “We hope the Sixth Circuit reverses the panel’s erroneous decision.” En banc appeals are often seen as long shots, attorneys have told us. The FCC didn’t comment.
The 6th Circuit ruling conflicts with both the 2000 9th Circuit ruling in AT&T v. City of Portland that BIAS is a telecommunications service and the D.C. Circuit’s 2016 ruling in U.S. Telecom Association v. FCC, said the petition for rehearing en banc. The 6th Circuit decision also conflicts with the Communications Act because it ignored the statute’s definitions of telecommunications services and information services and the fact that telephone lines can be used to interact with computerized information, the petition said.
The panel’s “selective reliance on the FCC’s interpretation of the statute over the years -- refusing to defer to its present position while relying on some (but not other) of the agency’s interpretations in the past” was also “misplaced,” the petition said. In addition, the court “erred” in ruling that mobile BIAS is a private mobile service because it doesn't interconnect with the public switched network, the petition said. “Its conclusion that Congress nonetheless intended these terms to refer to the public switched telephone network is belied by Congress’s delegation to the FCC of the authority to define the term, which would serve no point if the phrase could only bear one meaning,” the appeal said. “The petition should be granted.”