Net Neutrality
‘This Court should stay the FCC’s latest flip-flop pending judicial review. Petitioners are overwhelmingly likely to succeed on the merits.’
Photo of Potter Stewart U.S. Courthouse in Cincinnati, Ohio
WASHINGTON, June 11, 2024 – Major Internet Service Providers went to court Monday to block new Net Neutrality regulations scheduled to go into effect next month.
If successful, the ISPs would stop the Federal Communications Commission from enforcing a host of open Internet rules, including prohibitions on ISP blocking and throttling of lawful content or ISP acceptance of payment to enable priority treatment to content.
Joint Motion for Stay of ISPs
On Monday, trade associations for Comcast, Charter, AT&T and Verizon asked the U.S. Court of Appeals for the Sixth Circuit in Cincinnati to issue a stay. The groups said the FCC’s rules would inflict irreparable harm and cause ISPs to delay or forgo new offerings and expansion plans.
“This Court should stay the FCC’s latest flip-flop pending judicial review. Petitioners are overwhelmingly likely to succeed on the merits,” the ISPs said in a 39-page filing.
Among the groups on the stay motion were: USTelecom, NCTA, CTIA, ACA Connects, and the Florida Internet & Television Association.
The FCC under Democratic control adopted Net Neutrality rules for the first time in 2015, only to overturn them three years later by an FCC under Republican control.
The FCC adopted the latest rules on April 25. The Net Neutrality rules are scheduled to take effect on July 22, 2024.
Under the rules, ISPs are classified as common carriers under Title II of the Communications Act. ISPs want to be treated as lightly regulated entities under Title I of the same law.
The FCC last Friday asked the Sixth Circuit to transfer the case to the D.C. Circuit in Washington because of the D.C. Circuit’s long association with Net Neutrality litigation. Also Friday, the FCC’s Wireline Competition Bureau declined to stay the rules, acting on a request by many of the same ISPs that have now turned to the Sixth Circuit.
According to an industry source, the ISPs are going to oppose the case transfer to the D.C. Circuit. The FCC did not have an immediate comment on the ISPs’ judicial stay request.
In their motion, the ISPs asked the Sixth Circuit to rule on their stay by July 15.
“If the Court cannot rule by then, petitioners request an administrative stay. At the very least, petitioners request expedited briefing and argument,” the ISPs said.
The ISPs proposed a briefing schedule starting on Sept. 5. They also asked the court “to grant oral argument at the first available sitting after briefing is complete.”
In Monday’s stay motion, the ISPs said the FCC’s rules violated the Supreme Court’s Major Questions Doctrine, which required the FCC to point to clear authorization from Congress to adopt rules of vast economic and political significance.
“The economic and political significance of the FCC’s claimed authority is staggering by any measure,” the ISPs said. “And because the FCC cannot point to clear congressional authorization for applying common-carrier regulation to the Internet, the order is unlawful.”
