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USTelecom Tells D.C. Circuit FCC Failed to Justify Open Internet Order


WASHINGTON, D.C. — USTelecom is among several entities that filed a reply brief today with the U.S. Court of Appeals for the District of Columbia outlining why the court should grant a partial stay of the open Internet order. The brief argues that the Federal Communications Commission (FCC) broadly failed to make a persuasive case for opposing the stay request. The order will irreparably harm the public interest and broadband providers – particularly small companies working in underserved rural areas – and the public interest.

The FCC’s case is rooted in faulty interpretations of Supreme Court and FCC rulings, radically departs from the commission’s long-established regulatory definitions surrounding treatment of broadband access services, and creates a “massive regulatory sea change” that will invite class-action litigation and the potential for multi-million dollar penalties. A partial stay will serve the public interest by keeping in place bright-line rules prohibiting blocking, throttling and paid prioritization while allowing the court to sift through the complex legal arguments.

Below are some key points in the filing:

The order’s significant flaws merit a stay pending appeal

  • The FCC disregards key statutory text, has no answer to other crucial points, and misconstrues key parts of the Supreme Court Brand X case, which provides no legal support for the FCC’s attempt to redefine broadband Internet access as a telecommunications service. Nothing in Brand X supports the FCC’s attempt to define broadband access service as exclusively a telecommunications service.
  • The FCC also cannot justify its abrupt about face as to the statutory classification of mobile broadband.

FCC Fails to Make Case the Stay Will Harm Public

  • The FCC’s arguments against a stay attempts to show that the public would be harmed if its imposition of public utility regulation and ill-defined Internet conduct standard rules don’t go into effect. However, the stay request does not affect the three bright-line conduct rules that address specific concerns. And, the FCC’s arguments rely entirely on hypothetical concerns about conduct (such as market-based interconnection arrangements or broadband plans with usage-based pricing) that the order expressly declined to find contrary to the public interest. All providers face injury, but the situation is, predictably, most dire for the hundreds of small broadband providers. Although the FCC seeks to diminish the relevance of those providers, many serve rural and less populated areas where broadband choice is most limited. The FCC declined specific requests to exempt those providers from its rules, and its speculation as to the order’s effects cannot rebut their many sworn demonstrations of imminent and irreparable harm.


About USTelecom

USTelecom is the nation’s leading trade association representing broadband service providers and suppliers. Its diverse member base ranges from large publicly traded communications corporations to small companies and cooperatives – all providing advanced communications services to markets both urban and rural.