As many who follow the internet service provider space already know, the DC Court of Appeals upheld the Obama-era net neutrality laws when they first heard the case last year. Unfortunately, not every judge on the court was present for that decision which allowed opponents of net neutrality to petition the court for another hearing “en banc”, meaning with all of the judges present. On May 1, 2017 the court answered that petition with a definitive no.
The initial DC Court of Appeals decision was heralded as a big win for consumer groups who have been vocally supportive of better regulating the telecom industry. Predictably, industry giants like Comcast, Verizon and AT&T are completely against these net neutrality regulations, saying that they hamper innovation within the industry. The Trump administration has made it clear that they plan to dismantle the Obama-era net neutrality laws, but given the denial of the en blanc petition by the DC Court of Appeals, they will likely have to wait for the US Supreme Court to hear the case.
The petition was heard by a panel of judges who finally rejected it on numerous grounds. However, it was not a unanimous decision. Out of the eight judges who sat on the panel, two published lengthy dissents—Judges Janice Brown and Brett Kavanaugh.
The dissenting judges argued that the action taken by the FCC should have been left to congress. Kavanaugh even goes so far as to claim that the rules violate the First Amendment rights of internet providers. A position that TechCrunch writer Devin Coldewey dismantles in his recent article addressing this ruling pointing out that “ISPs do not “decide” what information they will transmit. In many cases they have no way of knowing what information they are transmitting”.
Unfortunately, despite this petition denial, this issue will not be put to rest until the US Supreme Court has taken the time to hear the case. Not only are there a lot of politics involved in this ruling, there is a lot of money involved as well. Telecom companies have a lot to gain if these net neutrality laws are overturned. Now that there is a full bench back on the Supreme Court, we can expect to have this matter officially resolved in the next year or two.