Open-Internet and Digital-Rights Groups Petition Court of Appeals for a Full-Panel Rehearing of January Anti-Net Neutrality Decision

CINCINNATI — On Tuesday, Free Press and a coalition of open-internet and digital-rights groups filed a petition for en banc rehearing of the U.S. Court of Appeals for the 6th Circuit decision against the Federal Communications Commission’s 2024 Net Neutrality rulemaking. That earlier decision stripped the federal agency of the authority it needs to protect internet users against all manner of abuses from major broadband internet-access providers like AT&T, Comcast and Verizon. 

In Tuesday’s filing, lawyers representing Free Press, the Benton Institute for Broadband and Society, New America’s Open Technology Institute and Public Knowledge argue that a rehearing before the entire court is warranted because the three-judge decision rendered in January “conflicts with the statute and the decisions of two other circuits.” Previously, the 9th Circuit found that broadband internet-access service is a telecommunications service, subject to Title II regulation. The D.C. Circuit also rejected claims that broadband must be a Title I information service, and held that the Obama FCC was justified under law in using its Title II authority over broadband-internet access. 

The petition once again demonstrates that the legal precedent supports the Commission’s 2024 decision, showing the wisdom of and the need for the FCC’s jurisdiction over the essential telecommunications platform of our time. Since the court’s January decision, Brendan Carr, an outspoken open-internet opponent, became chairman of the FCC.

Free Press Legal Director Yanni Chen said:

“Title II authority empowers the FCC to hold powerful telecommunications companies accountable for providing service on just, reasonable and nondiscriminatory terms to internet users throughout the United States. It also serves as the basis for the FCC’s 2024 Net Neutrality rules, which prohibit those companies from blocking, slowing down or charging extra for the internet content and applications that people choose. 

“Since the Supreme Court took Chevron deference to federal agencies off the table in Loper Bright, the 6th Circuit was assigned the task of parsing through the Telecommunications Act for the best reading of the statute. The three judges who decided this case got it wrong at every level of statutory analysis, in conflict with previous decisions from the 9th and D.C. Circuits. The judges instead published an opinion that worked backward from its desired outcome, stretching the limits of logical reasoning and ignoring technical realities.

“If left alone, the Trump FCC will have license to abdicate its responsibility to protect internet users. That’s why Free Press and allies are asking the entire 6th Circuit to reexamine the decision, even if the Carr-led FCC won’t.”