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FCC files its opposition to a stay of the open Internet order

The Federal Communications Commission filed its opposition Friday to the requests for a stay of its open Internet order, meeting the deadline set by the D.C. circuit court of appeals. The agency also asked the court to expedite consideration of the case.

Petitioners, led by the telecom and cable associations, have until next Thursday, May 28, to file replies to the FCC’s arguments.

In its opposition, the FCC argues that the court, in the 2014 Verizon vs. FCC case, instructed the FCC to reclassify Internet service providers so that it could apply the net neutrality rules of no blocking, no throttling and no paid prioritization. For its authority to redefine the ISPs as common carriers, the FCC cites the 2005 Supreme Court case NCTA vs. Brand X.

“Brand X recognized that the commission has the discretion, exercised in the order, to divide broadband service into two components: an offering of pure transmission or “telecommunications services,” on the one hand, and a separate offering of “information services”—such as the provision of an email address—on the other. And Brand X confirmed that the Commission has the authority to set “federal telecommunications policy in this technical and complex area….” the FCC’s filing said.

Ironically, in the Brand X case, the FCC was defending its decision to classify cable internet as an information service.

The FCC argues that the petitioners failed to show irreparable harm, only relying on examples from small Internet service providers, many with only a couple thousand customers.

“Oliver Wendell Holmes, Jr. would be astonished to hear petitioners claim that unfairness, vagueness, and uncertainty result from the use of case-by-case adjudication in which the commission simply seeks the “experience” that our common law tradition extols …. Their other claims of harm are too conjectural, uncertain, or hypothetical to satisfy the demanding standard for irreparable injury.”

coalition of nearly two dozen tech firms, internet companies and advocacy groups, filed in support of the FCC through their own opposition to the stay.