Free Press and Allies File Petition for Rehearing of Court of Appeals Net Neutrality Decision

WASHINGTON — On Friday, Free Press and a number of allies filed a petition for an “en banc” rehearing of the U.S. Court of Appeal's Oct. 1 decision that wrongly upheld key portions of the Trump FCC’s 2017 repeal of Net Neutrality protections.

The petition was filed jointly by Free Press, New America’s Open Technology Institute, Public Knowledge, Center for Democracy and Technology, the Benton Institute for Broadband and Society, and the Computer and Communications Industry Association. It explains that the Court of Appeal’s Oct. 1 decision misinterpreted the precedent set by the Supreme Court’s 2005 Brand X decision when the D.C. Circuit deferred to the FCC in upholding its 2017 repeal.

In that 2017 repeal the agency reversed the landmark Open Internet Order the Obama-era FCC put in place in 2015. The 2015 order reclassified broadband Internet access as a telecommunications service under Title II of the Communications Act, a baseline requirement for the FCC to safeguard Net Neutrality, promote broadband affordability, preserve public safety and internet access in times of emergency, and maintain a host of other protections on behalf of internet users.

In the absence of these protections, internet service providers such as AT&T, Comcast and Verizon are now free to block, throttle, slow down or otherwise discriminate against content that crosses their networks as long as they disclose their plans to do so, and they have no obligation to offer broadband on just and reasonable terms to the hundreds of millions of people who rely on them for internet access.

Free Press Vice President of Policy and General Counsel Matt Wood made the following statement:

“We’re continuing the fight for crucial communications rights like Net Neutrality in court today, asking the full D.C. Circuit Court of Appeals to reconsider the decision handed down by a panel of three judges earlier this Fall. These critical protections are just too important to leave in the hands of cable and phone companies with their hollow promises to be good.

“Net Neutrality is the fundamental nondiscrimination law of the internet. It ensures that people can go where they want, watch what they want, and say what they want online without unreasonable interference from the broadband providers that connect us to the internet but also still peddle their own video and voice services. The Trump FCC tossed these rules aside on the basis of a fundamentally flawed record, laden not just with ISPs’ lies about the law and about their investment, but with perhaps millions of phony public comments — some apparently bought and paid for by ISP lobbyists and front groups.

“But FCC Chairman Pai did even more than that when he and his Republican colleagues torpedoed Net Neutrality. They also abandoned the FCC’s legal framework for all of its broadband rules — jeopardizing public safety, internet affordability, broadband competition, and privacy protections against phone and cable companies’ prying eyes.

“The D.C. Circuit’s first decision on the Pai repeal was an unusual opinion, adopted by all three judges on the panel, but filled with obvious tensions between the ways individual judges saw the facts. So even as the court unanimously but anonymously upheld the agency’s decision on the slimmest of margins, Judge Millett wrote a brilliant concurring opinion that explained just how flimsy and outdated the FCC’s claims were.

“Our petition for rehearing today shows that the court didn’t need to defer to the FCC’s judgments on Title II and the proper legal definition for broadband internet access service. It also notes the fatal procedural flaws behind the legal authority claims the FCC used for the remnants of its transparency rules.

“There’s been a lot of attention on Net Neutrality this week, in the courts and in Congress too, and there had better be. While cynics and paid pundits can chatter about how the internet’s doing just fine in the wake of the Trump FCC’s repeal and retreat, people know better.

“The Pai FCC’s lies that massive deregulation would lead to faster speeds and better broadband options everywhere were never true, and just this week we learned yet again how bad the FCC’s data can be when it comes to measuring broadband providers’ performances against their promises. Pai is fiddling while wildfires burn and ISPs cut off firefighters’ service. He pats himself on the back for broadband providers’ overpriced and overhyped services, while real people keep fighting for restoration of Net Neutrality and other vital communications rights.”