If you think the Federal Communications Commission's latest legal victory settles the fight to protect the open internet, think again.
The US Court of Appeals for the District of Columbia Circuit upheld on Tuesday the FCC's 2015 net neutrality rules giving the agency unquestionable authority to regulate the internet.
The court agreed with the FCC on the cornerstone of its rules -- that the agency has authority to reclassify broadband as a public utility and apply old telephone regulation to broadband -- and it also agreed that the rules should be applied to wireless networks as well as fixed networks like cable-modem and DSL internet service. It also upheld the FCC's authority to intervene in commercial disputes between network operators, a first for the agency.
Sounds like a slam dunk, right?
Yet the cable and phone companies, which opposed the FCC's rules, aren't giving up. Their decision to keep fighting signals that the debate over net neutrality will rage on, potentially to the Supreme Court.
The opposition's ammunition: The court's split 2-1 vote and the nearly 70-page dissent from Justice Stephen Williams as a reason to keep the fight alive with an appeal.
"We have always expected this issue to be decided by the Supreme Court," AT&T's general counsel, David McAtee, said in a statement. "And we look forward to participating in that appeal."
What comes next?
AT&T and the other petitioners in the case, which include trade groups for both the cable and wireless industry, have two avenues for their appeal. The first thing they could do is to ask the entire DC circuit appeals court, which consists of 11 justices, to rehear the case. The original case was heard by a panel of three justices. In an "en banc" review, the case would be re-argued in front of the full court. If the case is reheard before the full appeals court, that decision, whatever it may be, can be appealed to the Supreme Court.
The other option for the cable and phone companies is to bypass the appeals court and appeal directly to the Supreme Court. This is likely the riskier move, since a rejection from the Supreme Court would leave the industry no other options for appeal.
It's unclear which avenue the cable and phone companies will take in the fight. Experts say getting either court to take the case is likely an uphill battle. The FCC's net neutrality regulations and the issue of whether the agency has authority to impose such rules has been before the DC Circuit court three times already in the past decade.
"The issues in this case are of great importance to the public and the national economy," said Paul Werner, a partner and co-head of litigation at the law office of Sheppard Mullin in Washington, DC. "But the US Supreme Court just doesn't take that many cases. I'd say the odds are about fifty-fifty."
Still, experts say the petitioners in the case have nothing to lose in appealing the decision, even if it is a long shot.
"If I were AT&T's lawyer, I'd have to take the shot and see what happens," said Daniel Lyons, professor of law at Boston College. "But if I were a betting man, I wouldn't put money on a court taking the appeal."
One thing is certain, the legal wrangling will likely continue for at least the next six months and could drag on into 2017. In the meantime, the FCC's net neutrality rules will continue to be the law of the land and the agency will continue to flex its regulatory muscle.
Using its authority under the new classification of broadband, the FCC is already teeing up a set of privacy regulations for internet service providers that could be voted on as soon as this summer.
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