Court Denies Free Press and Other Parties' Requests to Rehear Wrongly Decided Net Neutrality Appeal

Late Thursday, the U.S. Court of Appeals for the D.C. Circuit denied parties' requests for rehearing of the court's decision in Mozilla v. FCC.

The court's October 2019 opinion upheld the FCC's Net Neutrality repeal and broadband reclassification order. The decision deferred to precedent on the agency's discretion to interpret the relevant statutes while questioning the validity of that interpretation in light of today's broadband marketplace. Yet the court reversed the FCC resoundingly on the agency's attempt to preempt all state Net Neutrality laws.

The October decision also remanded the case to the FCC on several topics because the agency failed to address how its repeals would impact public safety, the Lifeline broadband-subsidy program for low-income people, and broadband providers' access to public rights of way.

In December, Free Press filed a petition for rehearing of the decision along with New America's Open Technology Institute, Public Knowledge, the Center for Democracy and Technology, the Benton Institute for Broadband and Society and the Computer and Communications Industry Association. While the groups were pleased with the court's October decision on preemption and the remand, they explained that the D.C. Circuit's decision on reclassification misinterpreted Supreme Court precedent on agency-deference doctrines.

Thursday's denial of that rehearing request, and of several others filed by other parties likewise challenging the FCC's decision, starts the clock on potential further appeals. Parties now have at least 90 days to consider seeking Supreme Court review, and could request more time beyond that 90-day deadline.

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

"We're disappointed by the court's boilerplate orders denying our rehearing request, because we made the compelling case that the October 2019 decision simply didn't have to turn out that way. The D.C. Circuit's initial ruling upheld parts of the Pai FCC's wrongheaded repeal on the slimmest of margins -- suggesting incorrectly that the appeals court was bound by earlier Supreme Court decisions, even as the judges held their noses and rightly questioned the wisdom of the FCC's reasoning.

"While today's result is unfortunate, it's not that surprising. Courts routinely deny rehearing requests like this. But we'll keep weighing our legal options. And we'll keep making the case in Congress, in statehouses and in future FCC proceedings about the need to restore the vital nondiscrimination rules that Chairman Pai ripped away. We need these kinds of protections for internet users, for the FCC to promote broadband competition and adoption, and for the agency to uphold its public-safety mandates. Any proper reading of the law requires restoring the rights that a majority of Americans of every political stripe demand."