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By Lydia Beyoud
May 13 — A stay of the FCC's Open Internet rules would preserve the status quo of the broadband industry pending judicial review, cable and wireless Internet service providers said in a joint motion for partial stay filed with the U.S. Court of Appeals for the District of Columbia Circuit.
The motion was filed May 13 by AT&T Inc., the American Cable Association, CenturyLink Inc., CTIA-The Wireless Association, the National Cable and Telecommunications Association (NCTA), the US Telecom Association and the Wireless Internet Service Providers Association.
A stay, they said, would shield both consumers and the industry from a “twice-convulsive situation if a new and extraordinarily broad regulatory regime were imposed on broadband providers, only to be vacated” should the petitioners win their case.
The filing asks the court to rule on the petition by June 11, 2015, a day before the Open Internet order takes effect, or else to grant expedited review of the case.
As with two petitions for stay filed with the Federal Communications Commission May 1 by the same groups, the ISPs said they only seek a stay from the portion of the net neutrality rules related to what they view as a burdensome regulatory regime under Title II of the Communications Act of 1934, as well as the FCC's general conduct rule. The FCC denied those petitions May 8.
“In seeking this relief, we are mindful that a stay need not upset the FCC’s net neutrality rules that prohibit Internet blocking, throttling and paid prioritization,” Michael Powell, president and chief executive officer of NCTA and former Republican FCC chairman, said in an e-mailed statement. “We hope that the court will move swiftly to grant effective relief, and that Congress will soon act to provide clear authority and needed direction as to the scope of appropriate open Internet protections,” he said.
Among the groups' arguments on their likelihood of prevailing in court is that the FCC didn't provide adequate notice during its rulemaking process that it was considering reclassifying broadband providers as common carriers under Title II.
The FCC and Chairman Tom Wheeler have repeatedly said that reclassification was clearly indicated as a possibility in a notice of proposed rulemaking (NPRM), but ISPs contend that only a few paragraphs of the NPRM sought comment on the issue. They further said those paragraphs asked whether the FCC should reclassify “solely to provide an additional legal basis for the new Open Internet rules.”
In this and other aspects of the rulemaking proceeding, the FCC “committed a string of glow-in-the-dark [Administrative Procedure Act] violations, any one of which would suffice to invalidate the Order,” the groups said.
The FCC and proponents of its Title II rules have repeatedly said no such violations took place.
The broadband groups further said the court should grant a stay because the reclassification order “creates significant uncertainty” as to how the FCC will apply certain consumer protections under Section 222 of the Communications Act regarding customer proprietary network information (CPNI).
In its rules, the FCC said the section would apply to broadband-related CPNI, but reserved the matter for future rulemaking to clarify how it would apply.
“AT&T estimates that it would lose up to $400 million in revenues (plus $13 million in implementation costs) if it ceased existing marketing that uses broadband-related customer proprietary network information in ways that might require customer consent while implementing consent mechanisms based on its guess as to content of future FCC rules,” the filing said.
Smaller providers unused to Section 222 compliance would also be harmed by having to expend money hiring experts to help comply with CPNI rules and handle any possible litigation under the rules, it said.
“The Order will also invite a torrent of enforcement proceedings and litigation, and force providers to undertake costly reviews of countless business practices,” the groups said.
“These challenges thus present some of the most consequential questions this Court is likely to encounter regarding technology, the future of the economy, and the boundaries of administrative law,” they said.
The commission is not without its supporters in the case. Six technology startups and COMPTEL—The Competitive Carriers Association filed separate motions to intervene in the case on the FCC's side.
The groups said they, too, would be adversely affected if the Open Internet order is overturned or modified. The groups include Etsy Inc., Kickstarter, Inc., Netflix, Inc. and Vimeo. They are joined by consumer advocacy group Public Knowledge and the National Association of State Utility Consumer Advocates, which previously filed in support of the FCC.
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Text of the motion is at http://op.bna.com/der.nsf/r?Open=sbay-9wgp6k.
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