The federal appeals court in Washington, D.C., the last stop before the Supreme Court, refused last week to reconsider its October ruling that gave a thumbs-up to the FCC’s repeal of net neutrality regulations. The Republican-led commission ditched the Obama-era rules that guaranteed equal treatment for all internet traffic, regardless of its source or destination.
Last October, the appeals court heard a lawsuit brought by the Mozilla Foundation—makers of the open-source web browser Firefox—and several states that challenged the FCC repeal. But in a 2-1 ruling, a three-judge appeals court panel upheld the FCC’s 2017 vote, which finally took effect in June of 2018.
The court’s ruling included one important victory for net neutrality advocates, however. The judges rejected FCC Chair Ajit Pai’s contention that the federal repeal took precedence over all state regulations, prohibiting states from passing their own net neutrality legislation.
The D.C. appeals court disagreed—freeing states to impose net neutrality rules of their own, on a state-by-state basis.
Nonetheless, Mozilla and the other plaintiffs—including 15 state governments and several tech firms—petitioned the court to hear the case again. At the appeals court level, rulings of an initial three-judge panel can often be reevaluated either by the same trio of judges, or en banc—that is, by the full court, which consists of 11 judges.
But on Thursday, both the three-judge panel and he full court refused the petition to consider the case again. The court handed down the order without explanation, which is common in such refusals.
"While today's result is unfortunate, it's not that surprising," said Matt Wood, general counsel for Free Press, one of the advocacy groups bringing the lawsuit, as quoted by Ars Technica. "Courts routinely deny rehearing requests like this. But we'll keep weighing our legal options."
That primary legal option at this point would be to ask the United States Supreme Court to hear the case, but the plaintiffs did not say whether they planned to take that step.
“We look forward to continuing to fight for an open Internet in Congress and in statehouses across the country,” said John Bergmayer, legal director for Public Knowledge, another plaintiff in the net neutrality lawsuit.
Washington state and Oregon, however, have said that under the court’s ruling, they will enforce the state-level net neutrality rules already on their books. Other states that have passed similar open internet regulations, including California and Vermont, say that they will wait until all appeals in the federal lawsuit have tried.
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