To the surprise of almost no one, on Wednesday May 9, the largest Internet service providers (ISPs) and cable companies filed a Motion for a partial stay of the FCC’s Open Internet Order with the DC Circuit Court of Appeals. Specifically, the parties are seeking to stay the Commission’s decision to reclassify broadband Internet access service (both wireline and mobile) as a Title II telecommunications service. They are also requesting a stay of the Commission’s decision to regulate all future carrier behavior on the Internet through the new rule its new “No-Unreasonable Interference/Disadvantage Standard.”

Alternatively, if the Court chooses not to grant a stay, the parties request that the Court expedite its proceedings on this case so that it reaches a decision before the June 12, effective date of the Order.

The Petition was filed jointly by the United States Telecommunications Association, the National Cable & Telecommunications Association, CTIA – The Wireless Association, AT&T, the American Cable Association, CenturyLink, and the Wireless Internet Service Providers Association.   

Remarkably the parties are not requesting a stay of the FCC’s rules prohibiting the blocking, throttling or paid prioritization of Internet traffic. That is an indication of how much the net neutrality battle has changed.  Virtually the entire industry (including congressional Republicans), now support the primary intent of the FCC’s 2010 Internet Order. The Court’s rejection of that Order, because the Commission attempted to regulate broadband Internet service as a telecommunications service, directly led to the current dispute. 

Moreover, that Court, even while rejecting the 2010 Order, provided the Commission with a clear path to regulating Internet behavior through the ancillary use of section 706 of the 1996 Telecommunications Act. According to the DC Circuit, section 706 which authorizes the FCC to take actions encouraging the deployment of advanced services, provides all the authority the Commission needs to stop the blocking, throttling and paid Internet traffic prioritization without reclassifying broadband Internet access service as a telecommunications service. 

In fact, in its 2014 open Internet draft rules, this was precisely the path the FCC had chosen. It was only when President Obama and consumer advocates loudly pushed for reclassification that the Commission changed on a dime and yielded to the political pressure. That is to the Commission’s discredit and, unless something dramatic occurs, will lead to years of litigation and uncertainty for the industry.

In their Motion, the Petitioners made the following arguments for a stay of the Commission’s broadband Internet service reclassification decision (pp. 13-15):

Petitioners are likely to prevail on the merits - Broadband Internet access fits squarely within the 1996 Act’s definition of information services that may not be regulated as common carriage under Title II. And Congress explicitly stated that the term “information service” includ[es] specifically a service... that provides access to the Internet.

Mobile broadband - Title II reclassification is doubly unlawful as to mobile broadband, which is protected from common carrier regulation by additional, independent statutory provisions. In the Order, the FCC turned its back on both its multiple prior legal conclusions regarding those protections and its prior finding that mobile services warrant an especially light regulatory touch because of intense competition and unique operational characteristics.

Traffic exchange between ISPs and edge (content) providers - The Order compounds these errors by defining the newly reclassified broadband service to run from the customer’s premises (or mobile device) all the way across the Internet to the hand-off to other networks or content providers. It does so to try to evade this Court’s holding in the 2010 Order that the FCC cannot impose common carriage regulation on the relationship between broadband providers and edge providers without reclassifying that relationship as common carriage as it declined to do.

The Order violates the Administrative Procedure Act (APA) - The public was not provided with sufficient notice when the Commission decided to shelve its 2014 draft rules which had proposed continued light regulation of broadband Internet access providers under section 706 of the Act and decided to impose reclassification.

Increased costs and litigation - The extension of public utility regulation to the Internet will impose on petitioners and immense burdens and costs that a ruling overturning the Order cannot undo. The Order will also invite a torrent of enforcement proceedings and litigation, and force providers to undertake costly reviews of countless business practices, from “traffic exchange” agreements which govern how providers carry data over one another’s networks and which the Order subjects to a Title II regime in addition to the one applied to Internet access to the handling of customer information and marketing.

The feeling here is that the Court will choose to grant a partial stay. Since the rules prohibiting blocking, throttling or paid prioritization of traffic would become effective, it cannot be legitimately argued that the public would be damaged if reclassification is stayed. In addition, a stay would give Congress a chance a fix the reclassification mess the Commission has created for the industry. Why should we have to face years of legal uncertainty when there is now so much industry agreement on appropriate Internet behavior?

By Andy Regitsky, CCMI