Mega-ISPs Request En Banc Appeal of Net Neutrality Ruling

As leaks suggested yesterday, wireless ISPs, telcos and cable companies have formally requested an en banc review from the full 9-member DC Circuit Court of Appeals in yet another attempt to dismantle the FCC's net neutrality rules. As noted previously these requests are often rejected, and most telecom policy experts doubt the industry will see much success. The other option however was an appeal to the Supreme Court, which given the comprehensiveness of the FCC's June victory, was seen as an even less likely path for success.

Not too surprisingly, the CTIA petition (pdf) tries to argue that wireless networks shouldn't be covered by net neutrality rules whatsoever.

Cable operators, meanwhile, tried to once again argue in their own filing that the FCC was imposing "an outdated regulatory framework" on an incredibly innovative industry, likely resulting in hampered overall broadband investment (no objective data supports this narrative to date).

"Because the FCC Order was such a monumental departure from the FCC’s successful tenure of overseeing broadband internet networks that have seen tremendous investment, expansion and innovation, we seek rehearing of these critical issues," the cable industry claims. Amusingly, a random comment over at the NCTA blog offers more insight than the cable industry's full announcement.

"The problem is your clients are the most hated companies in America," a commenter notes. "They brought this on themselves by carving up regional monopolies and price gouging us."

Again, most consumer advocates and telecom policy wonks don't think the incumbent ISPs have much of a shot in getting the rules overturned.

"I honestly don’t see success," Free Press Research Director S. Derek Turner tells me. "The dissent’s main argument is that the FCC didn’t explain why it was changing its mind, and spent quite a bit of ink on the issue of the market’s competitiveness. But how competitive a market is or is not has no bearing on the classification issue, only the nature of the service itself. The majority opinion does a good job of explaining why the dissenting opinion is off base, noting that the FCC had satisfied the standard in Fox for reversing a prior opinion."

While the broadband giants could have let this rest, most of them are currently worried about the FCC's plan to use its restored authority over broadband providers to impose new broadband privacy rules. Despite claims by industry the proposed rules will be relatively basic, simply ensuring that consumers are adequately informed on what's being collected, and given functional opt-out tools. The FCC argues such rules are necessary thanks to telecom's monopoly over the last mile; ISPs argue the rules will hamstring their efforts to compete with Google and Facebook in the content and advertising space.

Should the en banc appeal be rejected, the broadband industry's last, best hope will be to elect a President who'll staff the FCC with revolving door regulators who'll either begin a new rulemaking process to overturn the rules (unlikely and cumbersome), or who'll simply refuse to enforce the rules whatsoever (significantly more likely).