The FCC was handed an important victory yesterday as the D.C. Circuit Court of Appeals denied motions for a stay of the FCC’s decision in the February 26 Open Internet order to classify broadband as a Title II telecommunications service. Yesterday’s decision, which also rejects calls for a stay of the Open Internet “general conduct” rule, clears the way for the Open Internet order to go into effect in its entirety starting today. (Meanwhile, in a development described below, House lawmakers unveiled an appropriations measure this week with provisions that block usage of FCC funds for enforcement of the Open Internet rules.)
In motions filed last month, the National Cable & Telecommunications Association, USTelecom, wireless association CTIA and various other industry players argued that a stay of the Title II and general conduct provisions of the Open Internet order would avoid the uncertainty and confusion that would result if the court later overturns the rules after they have taken effect. The D.C. Circuit concluded, however, that the petitioners “have not satisfied the stringent requirements for stay pending court review,” which include a showing that the parties seeking relief are likely to prevail on the merits and would be irreparably harmed absent a stay. The petitioners did not walk away completely empty handed, however, as the court agreed to their related request to expedite review of their earlier-filed petition to overturn the Title II and general conduct rules. To that end, the parties were directed by the court to submit a briefing schedule within 14 days.