Telcos, Cable Ask D.C. Circuit To Stay FCC Title II Reclassification, Internet Conduct Standard

challenges. In a joint motion Wednesday, the American Cable Association, AT&T, CenturyLink, CTIA, NCTA, USTelecom and the Wireless Internet Service Providers Association asked the court to stay the order’s reclassification of broadband Internet access under Communications Act Title II and its Internet conduct standard. They asked the D.C. Circuit to act before June 12, the order’s effective date, and if the court couldn’t do that, they asked for an administrative stay. NCTA and USTelecom noted that they didn't seek a stay halting net neutrality rules that prohibit Internet blocking, throttling and paid prioritization. The petitioners said the FCC was asserting “unprecedented regulatory power over the Internet” in a “sharp about-face” that “arrogated to itself breathtaking authority over the most transformative technology in living memory.” By reclassifying broadband Internet access as a Title II telecom service, the FCC was subjecting broadband to a regime designed for railroads, not social networking and streaming video, they said. Petitioners said they were likely to succeed on the merits, arguing that broadband fit squarely under the 1996 Telecom Act’s “information service” definition that can’t be regulated as common carriage under Title II and that expressly includes a service “that provides access to the Internet.” Noting the 2005 Supreme Court Brand X ruling, the petitioners said, “[B]y classifying Internet access as exclusively a telecommunications service with no information service offering, the FCC has adopted a position that all nine Justices in Brand X rejected. And it has turned Justice [Antonin] Scalia’s analogy on its head. Where Justice Scalia saw the relevant offerings as making pizza (information service) and delivering it (telecommunications service), the FCC pretends the pizzeria offers only delivery, and does not make pizza at all.” The petitioners said Title II was “doubly unlawful” for wireless, given its statutory protections from common-carrier regulation. They said the FCC, “in its headlong rush to implement this regulatory sea change at the President’s urging -- committed a string of glow-in-the-dark APA [Administrative Procedure Act] violations, any one of which would suffice to invalidate the order.” Shifting to alleged harms, the petitioners said “public utility regulation” of the Internet would impose “immense burdens and costs” on petitioners and their members, inviting a “torrent of enforcement proceedings and litigation,” and forcing “providers to undertake costly reviews of countless business practices.” Without a stay, providers face many millions of dollars in unrecoverable losses,” making it in the public interest to block the broad regulatory regime before it takes effect, they said. The agency is confident the D.C. Circuit will deny the stay request, a spokeswoman emailed us. "The Open Internet Order provides clear and defensible rules of the road that will ensure enforceable protections for consumers and innovators online. Petitioners have not demonstrated that they will suffer irreparable injury if the order takes effect, and the public interest clearly favors allowing the Open Internet Order to take effect on schedule.”