FCC Urges 6th Circuit to Deny ISPs’ Motion to Stay Net Neutrality Order

The ISP petitioners’ consolidated motion to stay the FCC’s net neutrality order (see 2406110073) “attempts to replay the same legal challenges they ran unsuccessfully in 2015,” said the commission's opposition Tuesday in the 6th U.S. Circuit Court of Appeals (dockets 24.7000, 24.3449, 24.3450, 24.3497, 24.3504, 24.3507, 24.3508, 24.3510, 24.3511, 24.3517, 24.3519, 24.3538).

The commission’s order reinstates a “carefully considered regulatory regime” for ISPs that’s “materially identical" to one the FCC adopted in 2015, the opposition said. A largely identical group of petitioners challenged the 2015 order in the D.C. Circuit, and the court “upheld the order in full,” it said, citing the 2016 decision in USTelecom v. FCC. The commission wants to transfer the consolidated net neutrality challenges to the D.C. Circuit. The ISPs oppose the FCC’s motion for a venue change (see 2406180001).

The petitioners also sought a stay in 2015 pending review, proclaiming, much as they do here, that “dire consequences" would follow should the order take effect, the opposition said. The D.C. Circuit “rebuffed those claims -- and no dire consequences followed,” it said. On the contrary, it said, the internet economy “flourished when the rules were previously in effect.”

Against that “backdrop,” the petitioners can’t “come close to meeting their heavy burden to justify a stay pending appeal,” said the opposition. The petitioners also can’t establish that they are likely to prevail on the merits “when, in a virtually identical posture nine years ago, a sister circuit held that their claims lacked merit,” it said.

The public interest “weighs strongly in favor of allowing the rules to take effect" to protect other participants in the internet economy, including consumers and edge providers, it said: “The motion for stay pending review should be denied.”