FCC Rejects Net Neutrality Delay, but Court-Ordered Stay Possible

NEWS ANALYSIS: The FCC denies a request by carriers to delay the enforcement of Title II rules on ISPs. But the opponents can ask the courts for a stay while federal lawsuits proceed.

No Neutrality Delay 2

The Federal Communications Commission on May 8 denied a request from a group of cable companies, ISPs and industry groups, including US Telecom and CTIA, to delay implementation of the order placing those groups under Title II of the Communications Act.

Title II is the portion of the law that governs the operations of landline telephone companies. The reclassification would force ISPs to accept the FCC's net neutrality rules.

The petition was filed with the FCC asking the agency to hold off on Title II until the courts have heard the various lawsuits alleging that the FCC acted improperly when it adopted its Open Internet order.

The FCC, as you might expect, disagreed that it has acted improperly and it didn't agree with the petitioners' assertion that the lawsuits were likely to be successful, which is normally a requirement for the FCC issuing a stay in implementation.

What this means is that net neutrality will go forward as part of the Title II change while the court challenges from the carriers and others go on simultaneously. This, of course, assumes that one or more of the lawsuits doesn't also result in a court-ordered stay that would keep the commission from actually implementing Title II.

Such a stay is possible, and perhaps even likely. Two major cable associations have already indicated that they will request stays with the appeals courts, according to reports in Broadcasting & Cable. The reason that the stay may be likely is partly due to the FCC's checkered past in regards to net neutrality and partly because some of the cable and wireless companies may be able to show harm.

At least one member of the FCC indicates that he already sees harm. Commissioner Ajit Pai said in remarks to the International Institute of Communications in London that the Title II move would cause a reduction in investment in the Internet, among other problems.

"It will lead to less investment, less competition, slower speeds and higher prices for consumers," Pai said. "And it was entirely unnecessary. The Internet was open and vibrant before the FCC acted. Or to put it another way, the Internet wasn’t broken. The U.S. government didn’t need to fix it."

Commissioner Pai explained his concerns a few weeks earlier when providing testimony to Congress on the Title II move. "Reclassifying broadband, applying the core of Title II rules and half-heartedly forbearing from applying the rest 'for now' or 'at this time' (as the Order suggests) will drive smaller competitors out of business and leave the rest in regulatory vassalage," Pai suggested.

"Monopoly rules designed for the monopoly era will inevitably move us in the direction of a monopoly. In that regard, this plan is little more than a Kingsbury Commitment for the digital age," Pai said.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...