• by Wendy Davis , Staff Writer @wendyndavis, May 1, 2017

A federal appellate court has refused to revisit its decision to uphold net neutrality rules that treat broadband as a utility service.

The court's move means that the net neutrality rules -- including ones prohibiting providers from throttling traffic or creating fast lanes -- remain in place for now. But the ultimate fate of the regulations is uncertain: Federal Communications Commission Chairman Ajit Pai, who has long criticized the rules, recently unveiled a proposal to repeal them.

The ruling marks the latest development in a battle over the FCC's 2015 net neutrality order, which which reclassified broadband as a "Title II" utility service, and imposed some common-carrier regulations on providers.

Soon after the FCC issued that order, a coalition of Internet service providers and trade groups -- includingUS Telecom Association, CTIA-The Wireless Association, Wireless Internet Service Providers Association, the American Cable Association, the National Cable & Telecommunications Association, AT&T and CenturyLink -- challenged the rules in court.

Among other arguments, they said the FCC lacked authority to reclassify broadband service as a utility. Last year, a panel of the D.C. Circuit Court of Appeals rejected that argument in a 2-1 vote.

The carriers then sought to reargue the case in front of the entire D.C. Circuit. That court refused the request by a vote of 6-2. Two of the judges in the majority suggested that Pai's plan to reverse the net neutrality rules was a factor in the vote.

"En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order," Circuit Judges Sri Srinivasan and David Tatel wrote in an opinion concurring in the decision to let the ruling stand. "The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one.... In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

Srinivasan and Tatel were members of the three-judge panel that voted last year to uphold the rules.

Circuit Judges Janice Rogers Brown and Brett Kavanaugh dissented from the vote to let the prior ruling stand. Kavanaugh said in a written opinion that he believes the FCC's rules are inconsistent with prior Supreme Court cases.

"Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common-carrier obligations on Internet service providers," Kavanaugh wrote. "In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind."

Senior Circuit Judge Stephen Williams -- who voted in 2016 to overturn the rules -- also said today he favored re-hearing the case, but didn't vote on the matter.

Net neutrality advocates celebrated news of the ruling. Matt Wood, policy director of advocacy group Free Press, said in a statement that the order serve as "yet another recognition of how sound Title II is. "

For his part, Pai said today that he still believes the 2015 rules were illegal. "I ... agree with many of the points made by Judges Brown and Kavanaugh in their compelling opinions explaining why the Commission’s Title II Order was unlawful," Pai stated.

USTelecom said it was "gratified" that the FCC is considering reversing the net neutrality rules. The group hasn't yet said whether will seek to appeal today's order to the U.S. Supreme Court.