Wheeler: Stay of Title II Rules Is High Hurdle

FCC Chairman Tom Wheeler says he thinks the Title II order should stand up in court, and that he doesn't see a court staying the rules in advance of ruling on the underlying court challenges that have already been threatened by ISPs unhappy with being classified as common carriers.

In a press conference following the Feb. 26 vote, Wheeler said he thought it would be hard for carriers to get a stay to "put off" the implementation of the rules.

He pointed to the orders three, bright-line rules--no blocking, throttling, or prioritized fast lanes. "They all said 'oh, we never intend to do that,' so, they are going to go into court and say, 'no, court, you need to stay this because we intend to block, we intend to throttle, we intend to have fast lanes.' So, I think a stay is a high hurdle.

One of the key tests for a stay is to prevent immediate harms from implementation of a rule, and Wheeler is suggesting that since ISPs have said they are not going to do any of things, a rule preventing them poses no immediate harm.

As to whether Title II would hold up in an underlying challenge when it is adjudicated, Wheeler pointed out that in remanding the FCC's 2010 Open Internet order, the D.C. federal appeals court had signaled that Title II would be one way of repairing the legal justification of the rules.

"The D.C. Circuit sent the previous Internet order back to us and basically said that [we] were trying to impose common carrier-like regulation without saying that tese are common carriers. We have addressed that issue."

The court said that the FCC's absolute ban on unreasonable discrimination was too much like a common carrier reg. Initially Wheeler was going to address that by turning that ban into allowing only commercially reasonable discrimination, which was in essence a change in language and emphasis to get at the same thing. But he has since said he thought that approach could be interpreted as what was commercially reasonable for ISPs rather than consumers.

Instead, he decided to treat ISPs as common carriers under Title II to justify bans on throttling and blocking and paid prioritization. He said that approach "gives him great confidence going forward."

John Eggerton

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.