Last Friday, supporters of the FCC’s Open Internet order urged the D.C. Circuit Court of Appeals to reject motions seeking a stay of the FCC’s decision in that order to reclassify broadband Internet services under Title II of the 1934 Communications Act.  The parties warned that potential harms to consumers “would dwarf the speculative injury petitioners claim.”  Absent a stay, Title II reclassification and related net neutrality rules adopted by the FCC on February 26 are scheduled to go into effect on June 12.  

In motions filed earlier this month with the D.C. Circuit, the National Cable & Telecommunications Association, AT&T, wireless association CTIA and others argued for a stay of the Title II and “general Internet conduct” provisions of the Open Internet order on grounds that a delay in implementing the rules while the court considers their legality would cause no harm to the public.  Advocates also contend that a stay would avoid the confusion and uncertainty that would roil the industry in the wake of a future decision by the court to overturn the Title II rules.  However, a dozen web service providers and public interest groups including Vonage, Comptel, Level Three Communications and Public Knowledge advised the court in a joint filing that the requested stay would provide Internet service providers (ISPs) “with a window of opportunity for harming rivals.” 

Meanwhile, the FCC advised the court that a stay of the Title II portion of the Open Internet order would also impact net neutrality enforcement in spite of ISP claims that their requests for stay do not extend to rules that prohibit the blockage or degradation of lawful web transmissions across their networks.  While acknowledging that petitioners had asked “to halt the application of Title II . . . while allowing three bright-line rules to go into effect,” the FCC reminded the court of its previous findings in asserting that “those bright-line rules are precisely the kind of regulation this Court held could not be applied until and unless broadband was reclassified as a telecommunications service.”  As such, the FCC maintained that a stay would hurt consumers, “leaving unprotected their ability to access Internet content, applications and services of their choosing.”