Internet service providers are common carriers, beginning today

12 June 2015 by Steve Blum
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No blood, no foul, no stay.

The Federal Communications Commission’s common carrier rules for broadband infrastructure and service take effect today. Yesterday, a three-judge federal appellate court panel denied a request by telecoms companies to put the rules on hold while the appeals process moves forward. The judges didn’t give a specific reason, simply saying “petitioners have not satisfied the stringent requirements for a stay pending court review”.

However, the ruling did cite a U.S. supreme court decision that focused on the degree of potential injury involved if a stay wasn’t granted, with harm to the public interest given priority…

This Court’s frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction…

A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences.

It would have been difficult for the companies to prove they faced permanent injury since they claim they’re more or less following the rules anyway, at least the few rules that are well defined at this point. Those would be the FCC’s three big taboos: no blocking, throttling or paid prioritisation. Everything else – pole access, universal service requirements and privacy policies, for example – will take years to figure out, let alone enforce.

So the wheels of federal justice and regulation will grind on in parallel. The judges also decided that the case will be heard on an expedited basis – which isn’t the same thing as quickly. Just not as slowly as it might have been.