FCC, DOJ Oppose Stay of Title II Broadband, Internet Conduct Standard

Internet conduct standard (see 1505130049). “We remain confident the court will deny the request for a stay," an FCC spokeswoman said. "Petitioners have not demonstrated that they are likely to prevail, and granting the stay motion would strip the FCC of the ability to protect consumers and innovators from harmful conduct by broadband providers.” In their opposition, DOJ and the FCC said the stay motion wasn't what it seemed. "It asks the Court to halt the application of Title II of the Communications Act to broadband, while allowing three bright-line rules to go into effect," they said. "But those bright-line rules are precisely the kind of regulation this Court held (in Verizon v. FCC, 2014) could not be applied until and unless broadband was reclassified as a 'telecommunications service.'" DOJ and the FCC said the Supreme Court's 2005 NCTA v. Brand X ruling was controlling, giving the commission authority to set telecom policy in a complex area, including the discretion to divide broadband into a telecom service of pure transmission and a separate information service, such as providing an email address. "The order does precisely that," they said. "The decision to reclassify broadband as offering a telecommunications service is consistent with the marketplace today and necessary to fulfill the goals of an open Internet, which the Verizon Court held were valid." DOJ and the FCC disputed petitioner claims they would suffer irreparable harm, another stay requirement: "Petitioners showcase a few broadband providers representing a small percentage of the marketplace to allege that the entire industry will be harmed, yet even these cherry-picked examples fail to demonstrate harm from the order." Former Supreme Court Justice Oliver Wendell Holmes "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," the agencies said. In their opposition, industry and "public interest" intervenors said the broadband reclassification and net neutrality rules "safeguard the public's ability to use the Internet ... without interference from petitioners." They said "the harms from a stay would dwarf the speculative injury petitioners claim, none of which is irreparable and little, if any, of which qualifies as injury at all." The intervenors are Cogent, Comptel, Dish Network, Level 3, Netflix, Etsy, Kickstarter, Meetup, Tumblr, Union Square Ventures, Vimeo, Credo Mobile, Demand Progress, Fight for the Future, Center for Democracy and Technology, New America's Open Technology Institute, Vonage, the National Association of State Utility Consumer Advocates, ColorOfChange, Public Knowledge and Free Press. The telco/cable petitioners have until noon next Friday to file a reply.