Washington, D.C. partner Laura Phillips was quoted in a Law360 article titled, “DC Circ.’s Deference To FCC May Boost Open Internet Repeal.” The article examines a recent D.C. Circuit order letting stand a prior panel decision upholding the Federal Communications Commission’s 2015 Open Internet Order, an Order the new FCC Chairman is proposing to revise substantially.
The concurrence relies upon the 2003 Supreme Court’s determination in National Cable & Telecommunications Ass’n v. Brand X Internet Services, where Congress specifically left the question of how to classify for regulatory purposes broadband services to the agency’s discretion and observed that the agency had made a rational choice by classifying broadband offerings as “information service” offerings. The concurrence also cited activity at the FCC to reexamine the 2015 Open Internet Order as another reason to not proceed to rehear the case.
Laura explained that the concurrence mirrored the reasoning of the 2003 Brand X Supreme Court decision, affirming deference to the agency’s reasonable action. She explained that the FCC will still have to go through a rulemaking process and justify changing regulatory course on broadband provider classification, but that the deference provided on this issue by the Supreme Court now may help take the FCC in a different direction.