D.C. Reacts to Court Denial of Title II Stay

Rule fans celebrate; foes sat they've only just begun to fight
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With most anticipating a federal appeals court panel would not issue a stay of the FCC's new network neutrality rules, or the TItle II reclassification undergirding them, the response to the news that that was indeed the court's decision drew immediate response (though some had prepared comments on either outcome just in case).

The rules go into effect Friday.

No fan of the rules, FCC commissioner Ajit Pai, who had voted against them, said he was disappointed, but not surprised.

"The bar for granting any stay is quite high, and I am pleased that the court did not suggest that the rules are in fact legally valid. I welcome the court’s coming examination of the FCC’s 313-page order, during which it will have an opportunity to address the order’s serious procedural and substantive flaws."

Republican commissioner Michael O'Rielly, who teamed with Pai to vote against the rules — they passed 3-2 — sounded down, but hardly out.

"The fight against the Commission’s rules, however, has only just begun, because unless eradicated they will ultimately harm the foundations of the Internet, and limit its possibilities. In the meantime, I will be vigilant in resisting any attempts by the agency to act as a referee enforcing rules known to none of the players and made up along the way."

There was more high-bar talk from USTelecom, which had sought the stay.

“While we’re disappointed the court declined to grant our stay request, we recognize that the bar for obtaining a stay is exceptionally high," said USTelecom President Walter McCormick. However, the court’s decision to grant expedited briefing shows the gravity of the issues at stake, and will facilitate a quicker path to determining the proper legal treatment for regulating broadband Internet access service."

USTelecom reiterated that it is not opposed to rules against blocking, throttling and paid prioritization, just that the 'proper treatment" is not to impose them under Title II.

COMPTEL, which represents competitive carriers, was celebrating.

“Today’s decision by the court to deny the stay request of the FCC’s open Internet rule sends a message of full steam ahead for consumers, start-ups and new network builders," said COMPTEL President Chip Pickering.

“The court's decision reaffirms the Federal Communications Commission and Chairman Tom Wheeler’s light-touch approach to deliver the strongest possible protections. We are already seeing the results in the marketplace, as interconnection agreements move forward, helping to deliver more content at a faster rate....[W]e are encouraged by today’s court decision, and stand ready to oppose those seeking to pull up the tracks on Internet access, innovation, and exploration.”

Berin Szoka, president of TechFreedom, appeared to share O'Rielly's view that the battle was just beginning.

“Getting a stay is always difficult, so the denial doesn’t say much (if anything at all) about how the case will ultimately be decided,” she said. “Today simply marks the beginning of a protracted legal fight over the legality of the FCC’s takeover of the Internet. If the FCC loses only on its glaring process failures, the court will simply order the FCC to start over again with a new rulemaking, and it will be at least two years before we get an appellate decision on the merits. If the FCC loses on the merits of its reinterpretation of the 1996 Telecom Act, the fight will shift to the Supreme Court, which could take years."

"The DC Circuit Court of Appeals decision not to stay the FCC’s Open Internet Order is disappointing," said Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation, but not surprising. "The bar to stay an administrative order is quite high; it requires a showing of irreparable harm and a likelihood of success on the merits.

Today’s decision is not a good signal for whether the appeal will be won or lost, only that it isn’t a slam dunk.

Uncertainty continues to reign. Congress would do well to step in with an independent grant of authority to provide the FCC the tools it needs to ensure an open Internet without resorting to the outmoded regulations of Title II."

The chairman and ranking members of the Senate Commerce Committee signaled they, too, felt Congress needed to step in to clarify the FCC's authority. (http://www.broadcastingcable.com/news/washington/nelson-signals-neutrali...).

Matt wood, Free Press policy director, said the court had made the right call in "[t]hwarting this latest attempt to strip Internet users of the protections they deserve. The Court recognized what we have long known: The FCC’s open Internet framework poses no threat to broadband providers' business interests."

The court actually only said that the petitioners had not met the strict standard for a stay.

“The court has rightly rejected the carriers' arguments," said Public Knowledge senior staff attorney John Bergmayer. "It has seen that their claims that they'd be ‘irreparably harmed’ as a result of having to protect consumers' privacy, and that their businesses depend on restricting consumer choice, are simply not credible. The carriers have also failed to convince the court that they are likely to succeed in their legal case."

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