FCC, opponents prep for next round in Net Neutrality Open Internet rule fight

The Federal Communications Commission (FCC) Tuesday may have won the first round in court Tuesday when a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld its Open Internet rules and the reclassification of broadband services under Title II by a 2-1 margin. But that victory merely cleared the way for the next battle of the lawyers, potentially in the Supreme Court.

While opponents of the FCC's rules, designed to prevent Internet service providers from offering favorable treatment to some content providers (including themselves) or restricting access to others (see "FCC targets Title II regulation of Internet services with forbearances for Net Neutrality"), could appeal to the full appellate court, a Supreme Court hearing appears all but inevitable.

"We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal," said David McAtee, AT&T senior executive vice president and general counsel said in a prepared statement shortly after the panel rendered its decision.

The fact that the Supreme Court has a vacant chair after the death of Antonin Scalia in February could favor the FCC. With only eight justices currently on the bench, the FCC would only have to shoot for a 4-4 tie to leave the DC Court order in place.

This, of course, pre-supposes the Supreme Court agrees to hear the challenge in the first place. Media reports in the wake of the Tuesday ruling have quoted several experts who have expressed skepticism that the Court would hear the opponents' plea.

Opponents of the Open Internet rules likely will continue to lobby Congress to enact legislation that would overturn the FCC policy as well.

The favorable ruling came on the FCC's third attempt to create open internet rules that would pass judicial review. In rejecting its previous attempt after a suit from Verizon, the DC Court dropped hints that if the FCC were to reclassify broadband service under Title II, its efforts would be viewed more favorably.

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