FCC’s Restoring Internet Freedom Order Rendered Pending Case Moot
For Immediate Release
Contact: Ted Hearn
PITTSBURGH, October 3, 2018 – The U.S. Supreme Court should vacate a 2016 court ruling upholding the Federal Communications Commission’s decision to treat Internet Service Providers as common carriers because the FCC’s new Restoring Internet Freedom order restored light-touch regulation and made the 2016 FCC rules inoperative, according to the American Cable Association.
ACA, CTIA – The Wireless Association, US Telecom, and CenturyLink, jointly recommended this approach to the high court in a brief filed Oct. 3. The brief explained that the D.C. Circuit’s ruling upholding the FCC’s 2015 rules needs to be vacated because the case is moot in the wake of the FCC’s decision to reverse the FCC’s prior classification of broadband as a “telecommunications service” subject to heavy-handed, utility-style common carrier regulations.
“Under Chairman Ajit Pai, the FCC intended for the 2018 Restoring Internet Freedom order to supersede the relevant parts of the Wheeler Commission’s sweeping and overbearing 2015 common carrier order, thereby repealing the regulations that ACA and others have on appeal before the Supreme Court. ACA believes the case is moot,” ACA President and CEO Matthew M. Polka said.
The request to void the lower court ruling originated with the Department of Justice (Solicitor General). ACA weighed in to support the DOJ’s recommendation and to respond to parties that have argued that the D.C. Circuit’s 2016 decision should remain undisturbed.
The FCC’s common carrier order imposed especially heavy burdens on smaller broadband providers, including rural cable providers that may serve as few as 50 customers. Common-carrier classification hindered providers’ ability to innovate and to extend high-speed Internet access to more Americans.
By way of background, ACA and others appealed the 2015 rules in the U.S. Court of Appeals for the D.C. Circuit. In 2016, a divided panel upheld the Wheeler FCC’s common carrier order, and the subsequent request for en banc review by the D.C. Circuit was denied. While ACA’s petition for review of the D.C. Circuit’s ruling was pending before the Supreme Court, the Pai FCC adopted the Internet Freedom order, reversing the Wheeler FCC.
Specifically, ACA urged the Supreme Court to grant review (to grant the writ of certiorari), vacate the D.C. Circuit’s decision upholding the Wheeler FCC, and remand the case to the D.C. Circuit with orders to dismiss the case as moot. ACA said its request was consistent with the Supreme Court’s established practice of vacating decisions in cases that become moot before the high court can decide whether to take a case. Vacatur is essential here because ACA should not be bound by a now-moot, and therefore unreviewable, decision.
ACA also argued that vacatur is appropriate because Supreme Court review would have been warranted had the case not become moot. ACA stressed the importance of the issues in the case, the many errors in the D.C. Circuit’s decision, and the fact that the FCC had imposed sweeping new regulations on a major sector of the American economy without clear authorization from Congress.
About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing more than 700 smaller and medium-sized, independent companies that provide broadband, phone and video services to nearly 8 million customers 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/