DC Circuit Rejects Request for En Banc Hearing On FCC’s 2015 Open Internet Order

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(May 3, 2017 – Jennifer Ortega) On May 1, the U.S. Court of Appeals for the D.C. Circuit rejected a request to review its decision to uphold the Federal Communications Commission’s (FCC) 2015 Open Internet Order. The decision and therefore the legality of the Open Internet Order may now be headed to the Supreme Court.

In the case, the plaintiff, USTelecom, asked the D.C. Circuit to grant them a rehearing en banc to reconsider its previous decision, which upheld the FCC’s order. An en banc review would have meant that all of the D.C. Circuit judges would rehear the entire case, which was originally decided by a typical three-judge panel. (There are currently 17 judges on the D.C. Circuit Court of Appeals.) In the case, USTelecom is arguing that the FCC overreached its authority in establishing the net neutrality regulations presented in the 2015 Open Internet Order.

In its decision, the D.C. Circuit cited FCC Chairman Ajit Pai’s plans to repeal the net neutrality rules, which were issued under the Obama administration; "En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order.” Should the FCC begin the formal rulemaking process to replace the current regulations, “the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

USTelecom has not yet announced any plans to move forward with their appeal to the Supreme Court. Their CEO has said the association is reviewing their legal options at this time.

Last week, Chairman Pai announced and released his new proposed rulemaking, entitled “Restoring Internet Freedom.” The FCC will vote to move forward with the formal rulemaking process at its next meeting on May 18.

Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.