Expect Court to Partially Stay FCC’s Title II Internet Reclassification

[Commentary] In the coming weeks, expect the DC Court of Appeals or the Supreme Court to grant a partial stay, of only the Federal Communications Commission’s Title II reclassification of broadband and its new “Internet conduct standard” (not the FCC’s net neutrality prohibitions of blocking, throttling or paid prioritization), even though stay requests normally have a low probability of success, because petitioners must convince the court that they are likely to win on the merits and that the opposed action will cause irreparable harm. Why?

First, these broadband provider requests for a partial stay are highly-targeted exactly and only where the petitioners’ arguments are strongest and the FCC’s defenses are weakest and most vulnerable. Second, broadband providers only need one successful argument on the merits to win a partial stay, yet they enjoy a phalanx of seven free-standing, strong arguments, each of which is sufficient to win a partial stay, and collectively, are quite formidable and mutually-reinforcing. Third, context proves this to not be a “normal” petition for a stay, because the DC Circuit has already overturned the FCC twice on the matter of asserting more Internet authority than the law provides, and this latest assertion of FCC Internet authority dwarfs the FCC’s previous overreaches. Fourth, a partial stay would maintain the status quo. It would not harm consumers, innovation or the public interest, because the partial stay would only stay prophylactic rules. There are multiple real and immediate harms to broadband providers which would be subject to immediate, substantial, broad and ill-defined new obligations and liabilities. The harms case is supported by over twenty affidavits of multiple claims of similar irreparable harms from a wide array of companies of different sizes and approaches. The petitioners provide substantial compelling evidence and precedent to prove the FCC’s Title II reclassification unlawful in at least seven different ways legally by:

Conflicting with the plain language of the Communications Act;
Conflicting with the Supreme Court’s Brand X precedent;
Conflicting with the D.C. Circuit Court of Appeals Verizon v. FCC precedent;
Conflicting with multiple cumulative FCC information services precedents over decades;
Conflicting with the CMRS mobile provisions of the Communications Act and FCC precedent;
Being arbitrary and capricious in violation of the APA and due process; and
Failing to provide APA notice of the fundamental approach and rationale of the reclassification.