On October 1, a three-judge panel on the District of Columbia Federal Court of Appeals dealt efforts to restore nationwide net neutrality rules a crushing blow. The judges ruled the Republican-controlled Federal Communications Commission was within its rights to strike down the Obama-era rules, which guarantee equal treatment of all internet traffic by the big telecom companies.
The ruling came in a lawsuit brought by a coalition of Silicon Valley firms and advocacy groups spearheaded by the Mozilla Foundation, makers of the open-source internet browser Firefox.
But last week, the Mozilla-led coalition filed a new petition in the D.C. federal court, asking for a second review of the lawsuit by a new panel of judges—or an "en banc" review that would include the entire panel of all 11 judges on the court, according to a report by Bloomberg News on Friday.
John Bergmayer, legal director at Public Knowledge, one of the advocacy groups that are parties to the lawsuit, told Bloomberg that the court “gave the FCC the benefit of the doubt too many times” in its October ruling.
“While agencies should be given deference where appropriate, they do not have the authority to rewrite the law or come to illogical, results-driven conclusions," Bergamayer said.
The judges based their ruling largely on the prior case National Cable & Telecommunications Association v. Brand X Internet Services. In that ruling, the United States Supreme Court upheld the FCC’s ability to regulate cable modem services.
But Andrew Jay Schwartzman, a lawyer for another nonprofit that has joined in the suit, the Benton Institute for Broadband & Society, said that two of the judges in October were “reluctant” to uphold the FCC’s net neutrality repeal but felt compelled to do so by the Brand X precedent.
“The rehearing petitions filed today invites those judges and their colleagues to reconsider this analysis,” Schwartzman said.
Those two judges, Patricia Millet and Robert Wilkins, wrote that they had “substantial reservations” about upholding the FCC’s repeal of the Obama-era rules. Both Millett and Wikins were appointed to the appeals court by Obama. The third judge on the panel, who expressed no such reservations about allowing the FCC to repeal net neutrality, was Stephen F. Williams, appointed in 1986 by Republican President Ronald Reagan.
Repealing net neutrality was a top priority for Ajit Pai, the former Verizon in-house lawyer who was appointed to chair the FCC by Donald Trump.
Photo By Slowking4 / Wikimedia Commons
