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ISPs Say Title II Decision Is Ripe for Stay

Cable and Telco ISPs have outlined the ABCs (and Ds and Es) of why a federal court should uphold their requests and stay the June 12 enforcement date of the FCC's Title II reclassification of Internet access service.

That came in a joint reply to the FCC's opposition to the stay.

The lead line was this: "The FCC’s reclassification of broadband Internet access as a Title II common carriage service is a seismic departure from the status quo that has prevailed for more than two decades. It will expose Petitioners and their members to a host of new, ill-defined requirements, and it immediately threatens them with class action litigation and enforcement actions."

The chorus making that point included USTelecom, the National Cable & Telecommunications Association, American Cable Association, AT&T, CenturyLink and the Wireless Internet Service Providers Association.

Their response was divided into arguments for why they will prevail in their underlying legal challenges, and why it is in the public's and ISP's interest to grant a stay in the interim.

Under the first category:

A. Reclassification "contravenes the statutory language, regulatory history, and the agency’s own precedent."

B. Reclassifying mobile broadband is in conflict with law and precedent.

C. The reclassification was arbitrary and capricious (which is a violation of the Administrative Procedures Act).

D. The order does not logically follow from the FCC's original proposal (which did not reclassify ISPs).

Under the public interest/"equities" argument:

A. Title II reclassification will cause irreparable harm to ISPs and consumers.

B. Ditto vague broadband privacy responsibilities.

C. Putting interconnection under Title II distorts those negotiations.

D. Pole-attachment requirements, fees and taxes are also irreparably harmful.

E. On the other side, a stay would not hurt anybody.

The petitioners argue it is a "paradigmatic" case for granting a stay: "The 'purpose of granting interim injunctive relief' is 'to maintain the status quo pending a final determination of the merits of the suit.' That is all Petitioners seek here....[G]ranting this motion will leave in effect the Order’s three bright-line rules — rules that address the only specific behaviors the FCC identified as contrary to the public interest."

The FCC suggested in its stay opposition that the ISP stay request was a bit of a Trojan Horse, saying that the court had already held that the rules can't be applied "until and unless broadband was reclassified as a 'telecommunications service,'" which meant if the reclassification were stayed, the rules would not be enforceable.

ISPs disagree. "A stay, therefore, will leave providers subject to more stringent regulations than ever before," they said.

ISPs, with the exception of Comcast, have not been under any network neutrality rules, aside from the network management transparency requirement, since the same appeals court remanded the rules back to the FCC last year for better legal underpinning.

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.