## Facts

- The FCC issued the 2015 Open Internet Order, reclassifying broadband Internet access as a Title II “telecommunications service” and adopting rules barring blocking, throttling, and paid prioritization.
- Industry petitioners challenged the Order; a D.C. Circuit panel upheld the Order in material respects in 2016.
- Petitioners sought rehearing en banc, arguing the FCC lacked statutory authority for a regulation of major economic and political significance and that the rules violated ISPs’ First Amendment rights.
- The full court circulated the petitions, responses, and amici submissions and called for a vote on rehearing en banc.
- The FCC was simultaneously pursuing a rulemaking that could replace the existing Open Internet rules.

## Issues

1. Whether the D.C. Circuit should grant rehearing en banc to reconsider the panel decision upholding the FCC’s 2015 Open Internet Order.
2. Whether asserted “major questions” statutory concerns and First Amendment objections warranted en banc review in light of existing precedent and the agency’s ongoing reconsideration of the rules.

## Decision

- The D.C. Circuit denied the petitions for rehearing en banc because a majority of eligible judges did not vote in favor of rehearing.
- The denial left in place the panel judgment upholding the 2015 Open Internet Order.
- A concurring statement argued en banc review was unwarranted given the FCC’s pending rulemaking and because the dissents’ statutory and First Amendment theories were incorrect under controlling precedent.
- Dissenting statements would have granted rehearing en banc, asserting the Order required clearer congressional authorization and raised serious First Amendment and separation-of-powers concerns.

## Legal Principles

- En banc rehearing is discretionary and is denied when a majority of eligible active judges does not vote to rehear the case.
- An order denying rehearing en banc leaves the panel decision intact and controlling in the circuit.
- Prudential and institutional considerations may support denying en banc review when an agency is actively reconsidering the challenged rule, reducing the utility of further judicial review at that moment.
- Competing views were articulated on whether Supreme Court precedent limits agency authority for regulations of major significance absent clear statutory authorization and on whether net neutrality requirements implicate ISP First Amendment rights; the concurrence viewed existing precedent as supporting the panel’s resolution.

## Conclusion

The D.C. Circuit’s denial of rehearing en banc preserved the panel decision sustaining the FCC’s 2015 Open Internet Order, while separate writings highlighted disagreements over statutory delegation, the “major questions” principle, and First Amendment constraints on broadband regulation.


United States Telecom Ass'n v. FCC, 855 F.3d 381 (D.C. Cir. 2017)