Industry Heavyweights Ask FCC To Stay Net Neutrality Order
AT&T, CenturyLink, CTIA, USTelecom and the Wireless ISP Association jointly sought a partial stay of the FCC’s net neutrality rules, approved by a divided commission Feb. 26 (see 1502260043). The Friday request targets the parts of the order reclassifying broadband as a common carrier service, but not the meat of the rules. But industry officials acknowledge it's unlikely the FCC will stay the highly contested order, which dominated debate at the FCC for the better part of a year. Verizon, which successfully challenged the FCC's 2010 net neutrality order, didn't sign onto the petition.
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"This is part of checking all the procedural boxes before going to court,” said a regulatory lawyer whose clients oppose net neutrality rules. “No one expects the FCC will change its mind as the result of a stay request." TechFreedom President Berin Szoka said the filing is likely a good preview of the arguments the various parties will make when they later seek a court stay of the order.
The industry petitioners note they're also seeking a stay in the U.S. Court of Appeals for the D.C. Circuit. “To allow adequate time for a judicial stay determination, if necessary, Petitioners respectfully request that the Commission act on this petition by May 8,” they said. The petition also argues that opponents of the order are likely to win in court. The order is “doubly unlawful as to mobile broadband services, which are among the most innovative and dynamic services in the Internet economy,” they said. “Congress and the Commission have found the unique competitive, technical, and operational circumstances of mobile broadband to warrant a particularly flexible approach.”
CTIA President Meredith Baker, a former FCC commissioner, acknowledged that the FCC rarely stays an order. “But the uncertainty and serious ramifications stemming from the FCC’s order requires CTIA to take every procedural step available to limit the impact of the FCC’s overreach,” she said. “The United States leads the world in 4G wireless investment and innovation. CTIA seeks to preserve this winning environment while the courts decipher the FCC's convoluted arguments.”
Petitioners seek a partial stay “because the commission’s departure from established law threatens consumers and members of our industry with immediate, irreparable harm,” said USTelecom President Walter McCormick. “Staying the order for a short period under the terms outlined in the petition will pose no risk to the public, and would promote stability and predictability in the broadband marketplace.”
Bipartisan majorities at the FCC “consistently and repeatedly” interpreted the Telecom Act to mean broadband Internet access is an “information service,” not a “telecommunications service,” the industry players told the FCC.“Now, however, a sharply divided Commission has radically reversed course. For the first time ever, the Commission subjects broadband Internet access service -- which it now defines to run from the customer’s premises all the way across the Internet to the hand-off to content providers -- to onerous common carrier duties under Title II of the Communications Act of 1934.”
The petitioners explicitly don't seek a stay of the three “prophylactic,” “bright-line” rules in the order mandating no blocking, throttling or paid prioritization, just of reclassification. “The Commission has identified no urgent public interest need to layer common carrier regulation and a vague Internet conduct standard on top of those rules while petitions for review are pending,” the petition said. “The public interest would best be served by preserving the status quo as to reclassification while the lawfulness of the Order is reviewed.”
Free Press Policy Director Matt Wood said the stay request is hardly a surprise. "The broadband providers have been wrong on the facts and the law all along, so it’s no surprise to see them back again, firing the same blanks,” he said. “The somewhat comical fact in this phase is that the carriers must claim immediate and irreparable harm from the reclassification decision; and yet they arrive to seek a stay of that decision nearly two months after petitioner USTelecom filed its first challenge to Title II in court."
Public Knowledge issued a news release slamming the arguments of the industry petitioners. “Petitioners boldly assert that granting the stay will not harm anyone," Public Knowledge Senior Vice President Harold Feld said. "From a consumer perspective, the fact that ISPs think they have a right to violate our privacy, exercise market power over interconnection negotiations, and plot clever ways to undermine the open Internet makes it clear how vitally essential these rules are, and why they must go into effect on schedule.”
Lawyers whose names appear on the filing include Kathleen Sullivan of Quinn Emanuel, former dean of Stanford Law School; Helgi Walker of Gibson Dunn, who represented Verizon in its appeal of the 2010 order; appellate lawyer Michael Kellogg of Kellogg Huber; and David Solomon of Wilkinson Barker, longtime chief of the FCC Enforcement Bureau.
The Telecommunications Industry Association said in a news release it agrees with the thrust of the industry stay request. “No urgency for the new rules has been identified by the FCC,” TIA said. “As such, the public will not be harmed by maintaining the status quo until the courts resolve significant legal questions about scope and impact of the order.”