STATEMENT UNDER FED. R. APP. P. 35(b)
For decades, the FCC, on a bipartisan basis, has disclaimed any authority to straitjacket the Internet with public-utility, common-carrier regulation. It repeatedly concluded that Congress, in the Telecommunications Act of 1996 (“1996 Act”), fenced off Internet access and earlier services providing access to information stored in remote computers from such regulation.
In 2015, however, the FCC reversed course from its prior judgments and decided, by a 3-2 vote, that Internet access is a “telecommunications service” subject to common-carrier regulation. As Commissioners Pai and O’Rielly explained in detail in their dissents, that decision is contrary to “the text of the Communications Act” and “marks a monumental shift toward government control of the Internet.” Pai Dissent 321, 351 (JA3797, 3827).
Whether Congress delegated to the FCC such broad, discretionary authority to “micromanage virtually every aspect of how the Internet works,” id. at 321 (JA3797), is a question of exceptional importance to the assignment of power within our government — and to the American economy. A panel of this Court, however, over the dissent of Judge Williams, affirmed the FCC’s ruling without coming to grips with its core deficiencies. The Panel disregarded extensive evidence — including the FCC’s own contemporaneous recognition — that, in passing the 1996 Act, Congress codified pre-1996 regulatory and judicial decisions that barred public-utility regulation of Internet access. The Panel also brushed aside direct statutory evidence confirming that the Congress that enacted the 1996 Act understood that “information services” — which all parties agree cannot be subject to common-carrier regulation — “includ[e] specifically a service . . . that provides access to the Internet.” 47 U.S.C. § 230(f)(2) (emphases added). And the Panel misread NCTA v. Brand X Internet Services, 545 U.S. 967 (2005), as authorizing the Commission to treat Internet access service itself as nothing more than pure transmission.
En banc review is necessary to ensure that the FCC wields only the power that Congress granted it and cannot arrogate to itself the authority to impose heavy-handed regulation on this most significant part of our economy.