Updated on 6/12
The appeals of the Open Internet Order have been consolidated in United States Telecom Assoc. v. FCC, No. 15-1063 (and consolidated cases) (D.C. Cir. filed Mar. 23, 2015). Thus, the court that decided Verizon v. FCC will rule on the FCC’s second attempt to extend its jurisdiction over the Internet.
As expected, the FCC denied several motions for stay on May 8, 2015. In light of the alleged adverse impact on their industries and companies, petitioners filed a Motion for Stay or Expedition on May 14, 2015 with the D.C. Circuit (“Respondents’ Stay Motion”). Absent a stay, the rules adopted in the Open Internet Order, with the exception of new reporting obligations which are subject to OMB approval, will become effective on June 12, 2015.
On June 11, 2015, the D.C. Circuit denied Petitioners’ motion for stay, but granted the request for expeditious consideration of their appeals. A summary of reactions to the court’s order by interested parties and members of Congress is provided in an excellent piece by Lynn Stanton of TR Daily.
The Petitioners’ Stay Motion is an excellent exposition of their legal arguments and the breadth of services providers’ opposition to the FCC’s imposition of Title II regulation on ISPs and the reclassification of Broadband Internet Access Service as a “telecommunications service.” Petitioners separately addressed the FCC’s decision to extend the Open Internet Order rules to mobile broadband service. Petitioners also addressed the FCC’s assertion of jurisdiction over Internet peering and transit agreements. As reported this week in Fierce Telecom, since adoption of the Open Internet Order, AT&T and Verizon have entered into interconnection agreements with Cogent and Level 3 for improved Internet connectivity.
The Respondents’(Department of Justice and FCC) Opposition emphasizes that the FCC has ample authority to classify broadband as a telecommunications service: The Supreme Court’s decision in Brand X, relying on Chevron, provides the FCC authority, to re-interpret on a continuing basis in light of changes in the industry and technology, ambiguous terms, including the statutory definitions of “telecommunications service” and “information service.”
Petitioners’ Reply zeroes in on the most compelling argument (from the author’s perspective) that broadband internet access service squarely fails within the statutory definition of “information services” that is distinct from and mutually exclusive with the definition of “telecommunications service” and, therefore, the FCC is foreclosed from “interpreting” how broadband Internet access service should be classified.