A three-judge panel turned down a request from the National Cable and Telecommunications Assn., USTelecom, the Wireless Assn. and other groups. They sought a stay of the FCC’s reclassification of Internet service as a Title II telecommunications service, a regulatory designation the agency sought as a means to implement robust net neutrality rules.
“Petitioners have not satisfied the stringent requirements for a stay pending court review,” the judges, Thomas Griffith, Sri Srinivasan and Cornelia Pillard, said in their order.
The decision does not stop litigation over the FCC’s action, but it does not prevent the rules from going into effect on Friday.
“This is a huge victory for Internet consumers and innovators! Starting Friday, there will be a referee on the field to keep the Internet fast, fair and open,” FCC chairman Tom Wheeler said in a statement. “Blocking, throttling, pay-for-priority fast lanes and other efforts to come between consumers and the Internet are now things of the past. The rules also give broadband providers the certainty and economic incentive to build fast and competitive broadband networks.”
The litigation over the FCC’s reclassification of the Internet now moves to an expedited briefing schedule.
“The court’s stay denial was disappointing, but not unexpected,” said Daniel Berninger, the founder of VCXC, a nonprofit that was a plaintiff in the petition to stay the case.
He noted that the DC Circuit panel included two Obama administration nominees and that “it was unlikely the liberal majority was going to overturn one of this administration’s signature policies.” Srinivasan and Pillard were nominated by President Obama; Griffith was nominated by President George W. Bush.
The FCC in February voted 3-2 to reclassify the Internet as a Title II common carrier, the cornerstone of its net neutrality rules that prohibit ISPs from blocking or throttling content, or from charging sites for speedier access to subscribers.
As expected, ISPs and other groups filed lawsuits, including motions to stay the FCC’s action before the rules go into effect on Friday. Had the D.C. Circuit granted the stay, it would have raised doubts about the ability of the FCC’s approach to withstand judicial scrutiny. Such a move also may have given momentum to Republican-backed net neutrality legislation, which would impose no blocking and no throttling rules yet strip the FCC of a great deal of authority over broadband.
USTelecom president and CEO Walter McCormick said that “while we’re disappointed the court declined to grant our stay request, we recognize that the bar for obtaining a stay is exceptionally high. 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.”
Pantelis Michalopoulos of Steptoe & Johnson, which is representing a coalition of supporters of the FCC’s action, said that the denial of the stay “is by no means the end of this case. But it is an auspicious beginning for the supporters of the open Internet. The Internet service providers have not shown a likelihood that they will win on the merits, and they have not shown that they will be harmed irreparably by the open Internet rules.”