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Court Strikes Berninger Title II Stay Request

A D.C. federal appeals court didn’t take long to respond to VoIP pioneer Daniel Berninger’s motion to stay the FCC’s new open Internet order.

According to a copy of the order from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued May 19, the judges struck Berninger's motion for a stay.

The court said it had made it clear that the stay petitions needed to be consolidated. Large cable and telco associations filed a joint petition of 35 pages, but Berninger had signaled he did not want to be lumped together with those. In addition, documents suggest the court did not make itself clear that Berninger could not file separately.

"The reality is that when the FCC sticks its hand in the management of networks, enormous collateral damage is felt across industries, not just for providers big and small, and threatens the future of the Internet. The FCC cannot continue to lump me and other entrepreneurs into the same category as the service providers," said Berninger in announcing his stay petition filing earlier in the day Tuesday.

Perhaps, but the court was determined to "lump" the stay requests together and suggested that should have been clear to Berninger, who disagreed.

"The overall purpose of my effort is to get the FCC/Courts to recognize the injury entrepreneurs creating new services and infrastructure innovations suffer as collateral damage due to the Open Internet Order," Berninger told B&C. "The FCC's stay denial said in summary - we plan to continue to ignore you. The court said - we just met you, but we also plan to ignore you. The ‘we plan to ignore you’ phase may last a while, but I promise the entrepreneur voice will be heard."

Berninger said that while the court claimed clear intent of including him in the joint stay, his case number had not been included.

"Imagine the chaos if everyone assumed clear intent they were included in orders in which their case number was excluded,” he said. “The court may have made a mistake excluding our case number but to claim clear intent indicates bias."

Berninger said that he still has some procedural options, but has not chosen one yet.

A check of the relevant documents supplied by Berninger shows that the court did, indeed, exclude the case number for Berninger's Title II challenge -- 15-1128 -- when it listed the case numbers for petitioners it said it wanted "to file a single joint motion for stay."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.