As anticipated, the FCC last Friday denied requests for a stay of the agency’s February 26 decision to reclassify broadband as a Title II telecommunications service. The stay requests were filed by the National Cable & Telecommunications Association (NCTA), wireless association CTIA and various other players in the cable, wireless and wireline phone service industries.
In denying a stay, the Wireless Telecommunications and Wireline Competition bureaus of the FCC proclaimed that none of the petitioners had demonstrated a likelihood that appeals of the Open Internet order now pending before the D.C. Circuit Court would prevail on the merits. Rejecting contentions that implementation of a Title II regulatory track for broadband network services (albeit with forbearance) would result in irreparable harm, the bureaus concluded that the harms alleged by the petitioners “are insufficiently concrete, and are associated with the mere fact of being subject to regulation beyond the ‘bright line’ rules adopted in the Order.” The bureaus further observed that the February 26 order “maintains the status quo of an open Internet, which the Commission has committed to protect and promote since 2005,” and maintained that “the record here was replete with evidence that the regulatory regime adopted in the Order . . . best serves the public interest.”
Meanwhile, NCTA and the American Cable Association joined other parties on Wednesday in pursuing a stay of the Title II rules at the D.C. Circuit Court of Appeals. Other signatories of the joint petition for stay include CTIA, AT&T, USTelecom, CenturyLink, and the Wireless Internet Service Providers Association. The court has set a May 22 deadline for the FCC and its supporters to respond. Although DISH Network, Public Knowledge, Level 3 Communications and thirteen other entities also petitioned the D.C. Circuit this week for leave to intervene on the FCC’s behalf, NCTA President Michael Powell voiced hope that the court “will move swiftly to grant effective relief,” as he argued that a stay “is necessary to avoid the serious and substantial harms that service providers and consumers alike will bear.”