Legal Challenges to the Open Internet Order

A mere 11 days after the FCC released its Open Internet Order, the U.S. Telecom Association and Alamo Broadband Inc. filed suit challenging the Order’s validity in the U.S. Court of Appeals for the D.C. Circuit and the 5th Circuit, respectively.  Pursuant to the random selection procedure prescribed by 28 U.S.C. § 2112(a) the Judicial Panel on Multidistrict Litigation selected the D.C. Circuit as the venue to consolidate those two suits.

An additional 10 lawsuits were filed once the Order was published in the Federal Register (included among those 10 were second petitions filed by the U.S. Telecom Association and Alamo Broadband Inc. to preserve their existing suits). At this point, all of those cases are before the D.C. Circuit and are (or soon will be) consolidated under Case Number 15-1063.

The Petitioners seeking to overturn the Order are: the U.S. Telecom Association; Alamo Broadband Inc., the National Cable Television Association; CTIA – the Wireless Association; AT&T, Inc.; the American Cable Association; CenturyLink; the Wireless Internet Service Providers Association; and Daniel Berninger.  The Independent Telephone & Telecommunications Alliance, and a group calling themselves the “Internet Independence Intervenors,” which consists of TechFreedom, CARI.net, Jeff Pulver, Scott Banister, Charles Giancarlo, Wendell Brown, and David Frankel, have intervened in support of Petitioners seeking to overturn the Order.

On the FCC’s side, the following groups have intervened in support of upholding the Order: the AdHoc Telecommunications Users Committee; Akamai Technologies, Inc.; COMPTEL; Center for Democracy & Technology; Cogent Communications, Inc.; ColorOfChange.org; Credo Mobil, Inc.; DISH Network Corporation; Demand Progress; Etsy, Inc.; Fight For The Future, Inc.; Free Press; Kickstarter, Inc.; Level 3 Communications, LLC; Meetup, Inc.; the National Association of Regulatory Utility Commissioners; the National Association of State Utility Consumer Advocates; Netflix, Inc.; New America’s Open Technology Institute; Public Knowledge; Tumblr, Inc.; Union Square Ventures, LLC; Vimeo, Inc.; and Vonage Holdings Corporation.

In addition, a group of competitive telecommunications services providers and resellers (Full Service Network, TruConnect Mobile, Sage Telecommunications LLC, and Telescape Communications, Inc.) filed a petition challenging the Order arguing that the FCC’s rules don’t go far enough in regulating broadband internet access service providers. This opposite angle petition challenging the Order, has created an odd situation in which the Petitioners identified above (save Alamo Broadband), who are seeking to strike down the Order, have sought to intervene in support of the FCC for the limited purpose of arguing against the Full Service Network group that the Order did not go far enough. The Full Service Network group has opposed Petitioners’ intervention request claiming it would unfairly give Petitioners a “third brief.”

After being denied by the FCC, the Petitioners moved for a stay from the D.C. Circuit. We expect the court to decide Petitioners motion before the effective date of the Order, Friday June 12, 2015.  Because the standard for a motion for stay requires a showing that Petitioners are (1) likely to succeed on the merits of the case, and (2) will suffer irreparable harm without a stay, these motions offer a nice preview of the merits stage briefing and the specific harms likely to result from implementation of the Open Internet Order.

To date, no briefing schedule has been set for the merits stage. However, briefing and argument may be expedited, because although the FCC opposed Petitioners’ stay request, it agreed with Petitioners’ alternative request that the case be briefed and heard on an expedited basis.

UPDATE June 11, 2015 4:50 P.M.

This afternoon the D.C. Circuit denied Petitioners’ stay request, granted the motion for expedited review, and directed the parties to agree to and file a proposed briefing format and schedule by June 25, 2015. The court also referred the FCC’s motion to dismiss the early filed petitions of U.S. Telecom Association and Alamo Broadband for consideration by the merits panel.