Court Shoots Down ISP Attempt to Overturn Net Neutrality Rules

The US Court of Appeals for the DC Circuit has denied an ISP request to review and overturn a previous decision by that same court upholding the FCC's 2015 net neutrality rules. You'll recall that numerous large ISPs sued to overturn the net neutrality rules, but were swatted down by the court's June 2016 decision declaring that FCC was well within its authority to issue them. ISPs subsequently filed for an en banc review in the hopes of a second strike, but that effort was shot down today by the same court.

Net neutrality supporters were quick to applaud the court's decision as a win, even though the court was quick to point out that part of their decision was made on the merits, and part of it was made because of the current FCC's plan to begin an NPRM later this month with an eye toward killing the rules.

"En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order," the decision reads. "The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one."

"In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

The complicated nature of the legal fight has allowed ISPs and their loyal allies to engage in some incredibly misleading rhetoric as they work to remove oversight of the barely-competitive broadband industry. ISPs could still appeal to the Supreme Court, which would create an additional layer of confusion as the current FCC boss (a former Verizon lawyer himself) tries to reverse the rules via FCC procedure.

"We will continue to review our legal options going forward to fully protect our open internet, and to connect all Americans to the promise and potential of broadband,” USTelecom, a coalition of large phone providers, said in a statement.

Still, consumer advocacy groups saw the refusal of an en banc appeal as a net win as the battle over net neutrality shifts gears.

"The D.C. Circuit has once again confirmed that the FCC's Open Internet rules are lawful and supported by the evidence," said Public Knowledge senior counsel John Bergmayer. "Now, the primary threat to these important consumer protections is FCC Chairman Pai's determination to roll them back, and to hand more power to monopolistic internet access providers."