Net Neutrality: Appeals Court Asked to Halt FCC’s Move to Reclassify Internet

David McNew/Getty Images

Cable and telecom trade associations asked the D.C. Circuit Court of Appeals to stay the FCC’s move to reclassify the Internet as a Title II telecommunications service, a regulatory maneuver to give the agency authority to impose robust net neutrality rules.

The FCC’s rules — passed in a 3-2 vote in February — go into effect on June 12.

But Internet service providers are asking the D.C. Circuit to set aside the FCC’s effort to reclassify before that date. They are not seeking a stay on net neutrality rules that prohibit ISPs from blocking or throttling content, or from engaging in paid prioritization. Nevertheless, there is some question as to whether the FCC would have the legal footing to implement those rules without reclassification.

The National Cable and Telecommunications Assn., USTelecom, CTIA-the Wireless Assn., AT&T, the American Cable Assn., CenturyLink and the Wireless Internet Service Providers Assn. insist that broadband service is still an information service and not a utility-like common carrier, and they call the FCC’s actions “independently unlawful.” They contend that the agency “abandoned its own longstanding classification decisions without grappling with either its prior legal conclusions and factual findings or the billions of dollars invested in reliance on prior policy.”

The industry also is challenging an FCC effort to include in its net neutrality order a “standard for Internet conduct,” a provision designed to give the agency some oversight over future marketplace behavior. The cable and wireless groups said that the standard was “amorphous,” and gives the agency “unfettered discretion to regulate new an innovative offerings.”

In their brief, the groups also characterize the FCC’s efforts to have some oversight over so-called interconnection agreements — like one that Netflix reached with Comcast last year — as regulatory overreach.

If the D.C. Circuit does stay the FCC’s order, it could give some momentum on Capitol Hill for Republican-sponsored net neutrality legislation. Democrats have so far balked at a Senate bill, arguing that it strips the FCC of a significant degree of authority. But the dynamics could change if it looks like the FCC’s recent attempt to impose rules of the road for the Internet will be gutted in court once again.

A spokeswoman for the FCC said, “We are confident that the court will deny the request for a stay. The Open Internet Order provides clear and defensible rules of the road that will ensure enforceable protections for consumers and innovators online. Petitioners have not demonstrated that they will suffer irreparable injury if the order takes effect, and the public interest clearly favors allowing the Open Internet Order to take effect on schedule.”