WASHINGTON — Cable operators weren’t waiting around for an answer from the Federal Communications Commission before planning their strategy to stop new Title II-based Internet rules in a federal court, where their odds are better.
That is a sound strategy, as the odds of an FCC majority deciding that the rules they just adopted are likely illegal is now moot. In fact, the cable firms did not have to file that initial FCC stay petition, but a veteran attorney said a U.S. Appeals Court generally wants parties to take that step first.
Last week, a pair of trade groups — the National Cable & Telecommunications Association and the American Cable Association — told the U.S. Court of Appeals for the D.C. Circuit that they would be asking it to stay the effective date of the new rules. That day is June 12, according to FCC chairman Tom Wheeler, until the court can decide on the host of legal challenges to the rules.
While the ACA, which represents small, independent cable operators, and the NCTA, which backs the industry’s bigger players, filed suit separately, the trade groups signaled that they wanted to file a joint stay request and asked that it be allowed to be 35 pages, rather than the 20-page limit. Late Friday, the court said the 35 pages would have to include all parties, cable and telco.
The FCC late last week denied the stay, as various parties had urged it to do. But parties on both sides of the issue suggested the stay could be granted by the court.
The NCTA, ACA and the telcos suing the FCC are not asking the court for a stay of the bright-line rules against blocking, throttling and paid prioritization. They are OK with those remaining in force.
They want the court to stay the Title II reclassification, as well as the creation of what they say is the vague general-conduct standard, as well as the inclusion of interconnection in the net-neutrality enforcement regime.
Cable operators have argued that the FCC can get all the protections it has been seeking without reclassification or a general standard that they, and others, see as a potential route to back-door rate regulation.
Scott Cleland, chairman of the ISP-backed group NETCompetition, said he thinks there is a good chance a stay will be granted even though it is usually a high legal bar.
“First, these broadband-provider requests for a partial stay are highly targeted exactly and only where the petitioners’ arguments are strongest and the FCC’s defenses are weakest and most vulnerable,” he said, adding, “Broadband providers only need one successful argument on the merits to win a partial stay.”
Even Harold Feld, senior vice president of Public Knowledge, which opposes the stay, thinks they have a shot, though he said it is tough to gauge.
“The ISPs have framed this as maintaining the status quo, including keeping the non-prioritization rule … It’s very tempting for the court to say, ‘Well, what’s the harm in keeping things as they are while we sort this out?’
“On the other hand, the supposed harms identified by the ISPs as warranting a stay are fairly weak and speculative,” Feld added.
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