Despite the best combined efforts of the cable, telecom and wireless industries to shoot them down, the new Title II rules for US Internet service providers are now fully in effect, potentially subjecting the providers to utility-style regulations.
Less than four months after the Federal Communications Commission (FCC) adopted the Open Internet Order by a partisan 3-2 vote, the reclassification of Internet service as a Title II service covered by common-carrier regulations formally became the law of the land on Friday. That historic development followed the rejection of opponents' stay requests by a federal appeals court in Washington, D.C. on Thursday. (See NCTA Files Stay Vs. FCC With D.C. Circuit Court of Appeals,)
What this means is that the FCC will now be able to use its extensive Title II regulatory powers to enforce its new net neutrality rules, which ban ISPs from blocking, throttling or discriminating against any web traffic or prioritizing any traffic in exchange for payment. While the cable, telecom and wireless industries don't necessarily oppose these rules, they fiercely oppose the use of Title II to enforce them and have sued the government to block the reclassification.
With the Open Internet Order now taking effect, the FCC is also putting into place a new process for treating net neutrality complaints on a case-by-case basis, including interconnection and peering disputes. In addition, the Commission can now field complaints about other ISP behavior thought to be interfering with the Internet's openness, such as port congestion, usage-based pricing and data caps. (See Interconnect Deals Bear Net Neutrality's Stamp.)
Trade associations representing the cable, telecom and wireless industries and their allies had sought the last-minute stay to block the Title II reclassification of Internet service from taking effect until the courts ruled on the merits of their challenge to that change. But a three-judge panel of the US Court of Appeals for the D.C. Circuit rejected that request, ruling that the petitioners had not met the "stringent requirements" for delaying the rules.
While that decision can be appealed to the full appeals court, that prospect does not seem likely. At least one of the primary Title II challengers, the National Cable & Telecommunications Association (NCTA) , has already signaled that it plans to move forward on other, more promising legal fronts against the Open Internet Order instead.
In their responses to the court's action, several Title II opponents tried to put at least a partly positive spin on the stay denial. For instance, both the NCTA and the American Cable Association (ACA) said they were "pleased" the three-judge panel agreed to expedite the case. But what they neglected to mention is that both sides requested an expedited review.
The NCTA also sought to play down the rejection of the stay request by arguing that "being granted a stay was always a long shot." But the fact remains that the court still denied the request, forcing the petitioners to gear up for what will likely be a long, drawn-out legal battle that could lead all the way up to the US Supreme Court.
Under the expedited process approved by the three-judge panel last week, the two sides now have 14 days to come up with a proposed briefing schedule for the case. But depending upon on how the full appeals court eventually rules on the case, it could drag on for years, leading to uncertainty in the US broadband market.
In the meantime, House Republicans are reportedly doing their best to throttle the FCC's new Title II powers over Internet service. A new government appropriations bill unveiled by the GOP last week would ban the Commission from enforcing its net neutrality rules until the courts sort out the challenges to them. That bill, though, has a long way to go before it becomes law.
— Alan Breznick, Cable/Video Practice Leader, Light Reading