[opendtv] Wheeler: Stay of Title II Rules Is High Hurdle | Multichannel
- From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Mon, 2 Mar 2015 07:36:53 -0500
http://www.multichannel.com/wheeler-stay-title-ii-rules-high-hurdle/388436
Wheeler: Stay of Title II Rules Is High Hurdle
FCC chairman Tom Wheeler says he thinks the Title II order should stand up in
court, and that he doesn't see a court staying the rules in advance of ruling
on the underlying court challenges that have already been threatened by ISPs
unhappy with being classified as common carriers.
In a press conference following the Feb. 26 vote, Wheeler said he thought it
would be hard for carriers to get a stay to "put off" the implementation of the
rules.
He pointed to the orders three, bright-line rules--no blocking, throttling, or
prioritized fast lanes. "They all said 'oh, we never intend to do that,' so,
they are going to go into court and say, 'no, court, you need to stay this
because we intend to block, we intend to throttle, we intend to have fast
lanes.' So, I think a stay is a high hurdle.
One of the key tests for a stay is to prevent immediate harms from
implementation of a rule, and Wheeler is suggesting that since ISPs have said
they are not going to do any of things, a rule preventing them poses no
immediate harm.
As to whether Title II would hold up in an underlying challenge when it is
adjudicated, Wheeler pointed out that in remanding the FCC's 2010 Open Internet
order, the D.C. federal appeals court had signaled that Title II would be one
way of repairing the legal justification of the rules.
"The D.C. Circuit sent the previous Internet order back to us and basically
said that [we] were trying to impose common carrier-like regulation without
saying that tese are common carriers. We have addressed that issue."
The court said that the FCC's absolute ban on unreasonable discrimination was
too much like a common carrier reg. Initially Wheeler was going to address that
by turning that ban into allowing only commercially reasonable discrimination,
which was in essence a change in language and emphasis to get at the same
thing. But he has since said he thought that approach could be interpreted as
what was commercially reasonable for ISPs rather than consumers.
Instead, he decided to treat ISPs as common carriers under Title II to justify
bans on throttling and blocking and paid prioritization. He said that approach
"gives him great confidence going forward."
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