Appeals Court Temporarily Suspends FCC’s Net Neutrality Rule for Broadband Services

A woman holds a "Save the Net" protest sign during a demonstration against the proposed repeal of net neutrality outside the Federal Communications Commission headquarters in Washington, on Dec. 13, 2017. (Alex Edelman / AFP via Getty Images)

A U.S. appeals court has granted a stay on the Federal Communications Commission’s (FCC’s) declaration of authority over broadband internet access (BIAS).

According to the U.S. Court of Appeals for the Sixth Circuit’s order, several broadband companies filed a motion to stay the FCC’s “Safeguarding and Securing the Open Internet” final rule published in May.

The final rule, which had been set to take effect on July 22, gives the FCC “additional authority to safeguard national security, advance public safety, protect consumers, and facilitate broadband deployment,” according to the FCC.

The appeals court ruling suspends the FCC’s order until Aug. 5.

“To provide sufficient opportunity to consider the merits of the motion to stay the FCC’s order, we conclude that an administrative stay is warranted,” the court said.

Several broadband associations and companies argued in their joint petition for a stay that the FCC “has once again claimed all-encompassing authority to regulate how Americans access the Internet—this time, adopting even more invasive rules than it did in 2015.

“By reclassifying broadband under Title II of the Communications Act of 1934, the Commission asserts the power to set prices, dictate terms and conditions, require or prohibit investment or divestment, and more,” the petitioners argued. “It should be ‘indisputable’ that the major-questions doctrine applies to that seismic claim of authority.”

Title II, or the Common Carriers section of the Communications Act, directs “just and reasonable” communication practices.

It’s the basis on which the FCC established its 2015 Open Internet Order to maintain net neutrality.

Under this order, broadband services—formerly classified under Title I as information services—were reclassified under Title II’s Common Carriers.

“Consistent with that experience and the record built in this proceeding, today we adopt carefully tailored rules that would prevent specific practices we know are harmful to Internet openness—blocking, throttling, and paid prioritization—as well as a strong standard of conduct designed to prevent the deployment of new practices that would harm Internet openness,” the FCC stated in its Open Internet Order.

According to the broadband petitioners, the Open Internet Order prompted litigation.

Then, under the Trump administration, with Ajit Pai as FCC chairman, the agency returned to the “light-touch approach,” the petitioners wrote.

“Now, in the Order challenged here, the Commission has flipped back to its 2015 position,” the petitioners argued. “This destabilizing pattern is untenable for a critical American industry.”

The FCC’s counsel responded to the petitioner’s argument in the Court of Appeals defending the Final Rule.

“The Order reinstates a carefully considered regulatory regime for broadband internet access providers materially identical to the regime the Federal Communications Commission adopted in 2015,” the FCC argued.

In response to that 2015 order, petitioners fought it, arguing that “dire consequences would ensue if the order took effect,” the FCC said.

“On the contrary, the internet economy flourished when the rules were previously in effect,” the FCC said. “Against this backdrop, petitioners cannot come close to meeting their heavy burden to justify a stay pending appeal. Petitioners cannot establish they are likely to prevail on the merits when, in a virtually identical posture nine years ago, a sister circuit held that their claims lacked merit.”

The FCC and OhioTelecom—one of the petitioners—didn’t respond by publication time to a request by The Epoch Time for comment on the court ruling.