Smaller ISPs Want En Banc Review By D.C. Circuit
PITTSBURGH, July 29, 2016 – The American Cable Association today took an important step for the well-being of its smaller ISP members by seeking judicial relief from the Federal Communications Commission’s sudden and unwarranted decision to subject cable’s advanced broadband Internet service to an outmoded regulatory framework developed in the 19th Century for narrowband voice communications.
Last year, the FCC reclassified Internet Service Providers (ISPs) as common carriers under Title II of the Communications Act. In June, a panel of the U.S. Court of Appeals for the D.C. Circuit, in a 2-1 vote, affirmed the agency in all respects. Along with the National Cable & Telecommunications Association, ACA filed a petition for en banc review, asking the full D.C. Circuit to review last month’s panel decision.
“ACA is challenging the FCC’s abrupt departure from its decades-long successful ‘light touch’ regulatory approach to broadband Internet in violation of the requirement for reasoned decision making contained in the Administrative Procedure Act (APA). It is also challenging the FCC’s failure to give adequate notice to interested parties that it planned to impose Title II common carrier regulation on this important part of the thriving Internet ecosystem,” ACA President and CEO Matthew M. Polka said.
In the petition, ACA and NCTA argued that en banc review is justified because the panel’s decision departed sharply from Supreme Court and Circuit precedent, upholding an immensely consequential agency action taken in clear disregard of core administrative law requirements.
The ISP trade groups stressed that the panel upheld the FCC’s Order despite multiple textbook APA violations only by drastically diluting those requirements. Its refusal to correct the FCC’s failures will invite that agency and others to defy those constraints in the future.
Among its many failings, the panel improperly excused the FCC’s failure to offer a reasoned explanation for reclassifying broadband. Although the agency can change its mind, Supreme Court precedent requires the FCC to provide a more detailed justification when its rulings, like the Open Internet ruling, rest upon factual findings that contradict those which underlay its prior policy and to take into account the serious reliance interests the FCC’s own prior policy had engendered.
The panel paid only lip service to these requirements, and its decision leaves each a dead letter, the ACA-NCTA petition said.
About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing nearly 750 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America. Through active participation in the regulatory and legislative process in Washington, D.C., ACA’s members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business. For more information, visit https://acaconnects.org/