FCC Denies Requests for Stay Pending Net Neutrality Appeals

Josh LongThe Federal Communications Commission has denied requests to temporarily suspend its classification of broadband as a telecommunications service pending appeals that aim to overturn the FCC’s Network neutrality regulations.

Telecommunications and cable interests had filed two separate petitions, requesting a stay of the FCC’s broadband reclassification decision while a federal appeals court examines the legality of the FCC’s open Internet order. The petitions also requested the FCC temporarily suspend rules governing certain conduct, including activities related to the exchange of Internet traffic.

The companies and groups that requested a stay included AT&T Inc., CenturyLink, United States Telecom Association, CTIA-The Wireless Association and the Wireless Internet Service Providers Association. A similar petition was filed by the American Cable Association and National Cable & Telecommunications Association.

The petitioners did not seek to temporarily suspend Network neutrality regulations that prohibit blocking, throttling and paid prioritization of lawful traffic.

The U.S. Court of Appeals for the District of Columbia Circuit has been inundated with requests to review and overturn the FCC’s regulations.. That is the same court that overturned the FCC’s previous open Internet order in January 2014.

The petitioners in the current appeals are not likely to prevail on the merits of their challenges, the FCC ruled on May 8.

Among the many arguments the FCC refuted was that its recent decision to reclassify broadband as a telecommunications service is contrary to a prior Supreme Court decision, which held cable-modem service is an information service. In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, the Supreme Court deferred to the FCC’s interpretation of statutory language, but the majority pointed out the agency’s initial interpretation is not necessarily permanent and can change, according to the FCC.

The FCC’s 19-page order denying the requests for a stay also found a stay was against the public interest and that other parties would be harmed if one was granted. Finally, the FCC said the petitioners failed to show they will suffer irreparable harm without the stay.

“Petitioners’ broad arguments regarding an environment of uncertainty ignore …

… that they already were subject to a case-by-case standard governing their conduct,” the FCC declared. “For over two years while the 2010 Open Internet rules were in effect, all fixed broadband providers were subject to a prohibition on ‘unreasonable discrimination.’ Moreover, all BIAS [broadband Internet access service] providers are subject to general legal standards under other federal and state laws and regulations that govern their conduct with respect to protecting consumers and competition.”

The FCC isn’t likely to have the final word on whether or not a stay will be granted. The broadband groups couldn’t ask the federal appeals court to grant a stay without first filing a petition with the FCC.

The FCC’s Net neutrality order, the National Cable & Telecommunications Association said earlier this month, “subjects Internet providers to vague and onerous standards, creating significant uncertainty about the introduction of new services and exposing providers to costly litigation – including class action lawsuits – that will lead to rate regulation.”

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