Federal Communications Commission DA 15-563
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Protecting and Promoting the Open Internet
)
)
) GN Docket No. 14-28
ORDER DENYING STAY PETITIONS
Adopted:  May 8, 2015 Released:  May 8, 2015
By the Chiefs, Wireline Competition Bureau and Wireless Telecommunications Bureau:
I. INTRODUCTION
1. On May 1, 2015, two petitions for stay of the 2015 Open Internet Order were filed, 
pending judicial review, by: (1) United States Telecom Association (“USTelecom”), CTIA-The Wireless 
Association, AT&T Inc., Wireless Internet Service Providers Association (“WISPA”), and CenturyLink;
1
and (2) American Cable Association (“ACA”) and the National Cable & Telecommunications 
Association (“NCTA”)
2
(together, “Petitioners”).  On May 7, 2015, Cogent filed an opposition to both 
stay requests.
3
  For the reasons discussed below, we deny the Petitioners’ requests for stay.
II. BACKGROUND
2. On May 15, 2014, the Federal Communications Commission (“Commission”) launched a 
rulemaking seeking public comment on how best to protect and promote an open Internet.  The Notice of 
Proposed Rulemaking (NPRM) initiating that proceeding posed a broad range of questions to elicit input 
from the public, including whether the Commission should invoke its Title II authority to reclassify fixed 
and mobile broadband Internet access service (BIAS) as a telecommunications service.
4
  On February 26, 
2015, after receiving almost four million comments and engaging in public workshops and numerous ex 
parte meetings, the Commission adopted “carefully-tailored rules to protect Internet openness” that it 
                                                     
1
Joint Petition for Stay of United States Telecom Association, CTIA – The Wireless Association, AT&T Inc., 
Wireless Internet Service Providers Association, and CenturyLink, GN Docket No. 14-28 (filed May 1, 2015) 
(“USTelecom et al. Petition”). 
2
Petition of American Cable Association and National Cable & Telecommunications Association for Stay Pending 
Judicial Review, GN Docket No. 14-28 (filed May 1, 2015) (“ACA/NCTA Petition”). 
3
Opposition of Cogent Communications, Inc. to Joint Petitions for Stay Pending Judicial Review, GN Docket No. 
14-28 (filed May 7, 2015) (“Cogent Opposition”).
4
See, e.g., Protecting and Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 
FCC Rcd 5561, 5612-13 para. 148 (2014) (2014 Open Internet NPRM or NPRM) (“We seek comment on whether 
the Commission should rely on its authority under Title II of the Communications Act, including both (1) whether 
we should revisit the Commission’s classification of broadband Internet access service as an information service and 
(2) whether we should separately identify and classify as a telecommunications service a service that ‘broadband 
providers . . . furnish to edge providers.’  For either of these possibilities, we seek comment on whether and how the 
Commission should exercise its authority under section 10 (or section 332(c)(1) for mobile services) to forbear from 
specific obligations under the Act and Commission rules that would flow from the classification of a service as 
telecommunications service.” (footnotes omitted) (citing Verizon v. FCC, 740 F.3d 623, 656 (D.C. Cir. 2014)).
Federal Communications Commission DA 15-563
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found will “allow investment and innovation to continue to flourish.”
5
  These rules were crafted to apply a 
light-touch approach that would preserve an open Internet for consumers of both fixed and mobile 
services.
6
3. In the Order the Commission defined BIAS as “a mass-market retail service by wire or 
radio that provides the capability to transmit data to and receive data from all or substantially all Internet 
endpoints, including any capabilities that are incidental to and enable the operation of the 
communications service, but excluding dial-up Internet access service.”
7
  The Commission adopted three 
“bright-line” rules applicable to both fixed and mobile BIAS that prohibit blocking, throttling, and paid 
prioritization.  The Commission also enhanced the transparency rule adopted in 2010.
8
4. The Commission recognized that the three bright line rules, while a “critical cornerstone 
in protecting and promoting the open Internet,” nonetheless did not encompass all potential BIAS 
provider conduct that would harm the open Internet.
9
  To ensure its ability to fully evaluate and address 
broadband provider conduct harming Internet openness the Commission created rules to complement the
bright line rules, employing mechanisms to evaluate conduct on a case-by-case basis.  In the case of 
Internet traffic exchange, the Order established that the Commission will rely upon case-by-case 
evaluations of BIAS provider conduct under the general framework of sections 201 and 202 of the 
Communications Act of 1934, as amended (Communications Act or Act), which assesses whether actions 
are just and reasonable.
10
  Specifically, the Commission concluded that the record “demonstrates that 
broadband Internet access providers have the ability to use terms of interconnection to disadvantage edge 
providers and that consumers’ ability to respond to unjust or unreasonable broadband provider practices 
are limited by switching costs.”
11
  
5. Outside the Internet traffic exchange context, the Commission adopted a legal standard 
tailored to the open Internet context.  That “general open Internet conduct” rule prohibits BIAS providers
from unreasonably interfering with or unreasonably disadvantaging the ability of consumers to select, 
access, and use the lawful content, applications, services, or devices of their choosing; or of edge 
providers to make lawful content, applications, services, or devices available to consumers.
12
  As the 
Commission explained in the Order, “[b]ased on our findings that broadband providers have the incentive 
and ability to discriminate in their handling of network traffic in ways that can harm the virtuous cycle of 
innovation, increased end-user demand for broadband access, and increased investment in broadband 
network infrastructure and technologies, we conclude that a no-unreasonable interference/disadvantage 
standard to protect the open nature of the Internet is necessary.”
13
  As was the case with the “no 
                                                     
5
Protecting and Promoting the Open Internet, GN Docket No. 14-28, Report and Order on Remand, Declaratory 
Ruling, and Order, FCC 15-24, at para. 4 (rel. March 12, 2015) (2015 Open Internet Order or Order).
6
2015 Open Internet Order at para. 5.
7
2015 Open Internet Order at para. 25.  The definition “also encompasses any service that the Commission finds to 
be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the 
protections set forth in this Part.”  Id.
8
2015 Open Internet Order at paras. 162-81. 
9
2015 Open Internet Order at para. 135.
10
47 U.S.C. §§ 151 et seq.; 2015 Open Internet Order at paras. 194-206. 
11
2015 Open Internet Order at para. 205.
12
2015 Open Internet Order at paras. 133-37.  
13
2015 Open Internet Order at para. 136 (footnotes omitted).
Federal Communications Commission DA 15-563
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unreasonable discrimination” standard adopted in 2010, the Commission provided guidance on how that 
open Internet standard will be applied in practice.
14
  
6. Based on the record before it, the Commission reclassified BIAS as a 
telecommunications service.
15
  The Commission also revisited its prior classification of mobile BIAS, 
finding that it is best viewed as commercial mobile service, and in any event that it is the functional 
equivalent of commercial mobile service and therefore not a private mobile service.
16
  While finding that 
BIAS is subject to Title II, the Commission forbore from applying many provisions of Title II with 
respect to that service, including those that could have required ex ante rate regulation, tariff filing, and 
unbundling.  However, the Commission did not forbear from statutory provisions that it determined to be 
necessary to protect the public interest, including, but not limited to sections 201, 202, 208, 222, and 
224.
17
7. On May 1, 2015, Petitioners filed two separate petitions for stay of the open Internet 
rules, pending judicial review of the Order.  Both petitions seek a stay of the Order’s classification of 
BIAS as a telecommunications service and of the general conduct standard.
18
Neither petition seeks a 
stay of the three “bright-line” open Internet rules adopted in the Order.
19
Petitioners request a ruling on 
their petitions by May 8, 2015, “[t]o allow adequate time for a judicial stay determination, if necessary.”
20
III. DISCUSSION
8. In determining whether to stay the effectiveness of one of its Orders, the Commission 
applies the traditional four-factor test established by the U.S. Court of Appeals for the District of 
Columbia Circuit (“D.C. Circuit”).
21
  To qualify for the extraordinary remedy of a stay, a petitioner must 
show that: (1) it is likely to prevail on the merits; (2) it will suffer irreparable harm absent the grant of 
preliminary relief; (3) other interested parties will not be harmed if the stay is granted; and (4) the public 
interest would favor grant of the stay. For the reasons described below, we establish by looking at the 
petitions, the opposition, and the language of the Commission’s Order that Petitioners have failed to meet 
the test for this extraordinary equitable relief.
                                                     
14
2015 Open Internet Order at para. 68.  See also id. at paras. 138-53 (discussing factors to guide application of the 
rule, including in the mobile context, and related issues).
15
2015 Open Internet Order at paras. 306-87.
16
2015 Open Internet Order at para. 48.
17
2015 Open Internet Order at para. 456 (listing all statutory sections that the Commission where the forbearance 
standard is not met).  See generally, 2015 Open Internet Order at paras. 440-536 (providing forbearance analysis).
18
USTelecom et al. Petition at 1; ACA/NCTA Petition at 1. The general conduct standard referred to by Petitioners 
is set forth in Appendix A of the Order as new Section 8.11 of the Commission’s rules.
19
USTelecom et al. Petition at 2; ACA/NCTA Petition at 1 n.3. A third petition for stay also was filed, which
sought a stay of the entire Order, including the bright-line rules.  That stay request is addressed in another Order.  
Petition for Stay Pending Judicial Review of Daniel Berninger, Founder of the Voice Communication Exchange 
Commission, GN Docket No. 14-28 (filed Apr. 27, 2015). 
20
USTelecom et al. Petition at 2.  See also ACA/NCTA Petition at 30 (“Petitioners respectfully request that the 
Commission act on this petition by May 8, 2015, so that the court of appeals has adequate time to consider 
petitioners’ application for the same relief, should that become necessary.”).  
21
See Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (Holiday 
Tours); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958) (VA 
Petroleum Jobbers).
Federal Communications Commission DA 15-563
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A. Likelihood of Success on the Merits
9. Petitioners have failed to demonstrate that they are likely to succeed on the merits.
22
The 
Commission’s classification of fixed and mobile BIAS as telecommunications services falls well within 
the Commission’s statutory authority, is consistent with Supreme Court precedent, and fully complies 
with the Administrative Procedure Act.
10. Statutory Authority to Classify Broadband Internet Access Service. Petitioners first argue 
that BIAS cannot lawfully be classified as a telecommunications service and subject to Title II of the 
Act.
23
  Specifically, Petitioners argue: (1) the Commission’s classification contradicts the Supreme 
Court’s holding in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services
24
; and (2) the 
Commission was wrong to find that BIAS fits the definition of telecommunications service. We address 
each argument in turn.
11. Brand X.  Petitioners claim that the Order’s classification of BIAS as a 
telecommunications service conflicts with Brand X.  Specifically, Petitioners argue that the Order
contradicts Brand X’s conclusion that cable modem service is an information service and that, in any 
event, Brand X is “irrelevant” to the BIAS service classified in the Commission’s Order.
25
  Petitioners 
both misread Brand X and misconstrue the Order.  
12. Petitioners first argue that the Order contradicts the Brand X majority’s conclusion that 
cable modem service is an information service.  That conclusion, however, was predicated on the Court’s
holding that the statute’s use of the term “offering” in the definitions of telecommunications and 
information services was ambiguous.  Deferring to the Commission, the Court therefore upheld the 
Commission’s finding that cable modem service was a functionally integrated offering of an information 
service as a permissible (although perhaps not the best) interpretation of the Act.
26
  Notably, Brand X also 
explained that “‘[A]n initial agency interpretation is not instantly carved in stone.  On the contrary, the 
agency . . . must consider varying interpretations and the wisdom of its policy on a continuing basis, for 
example, in response to changed factual circumstances . . . .’”
27
  Thus, consistent with Brand X, the 
Commission has now properly revisited its prior interpretation of these ambiguous statutory terms, and on 
the basis of the current record, reasonably concluded that the specific service that is BIAS is best 
understood as “offering” a telecommunications service.
28
13. Petitioners also contend that Brand X does not control here because the Commission’s 
classification goes beyond “just a transmission component”
29
and is an “assertion of comprehensive 
                                                     
22
ACA and NCTA assert that even if the Commission does not agree that its petition is likely to succeed on the 
merits, the Commission still can grant the stay if it finds that the Petition makes “a substantial case on the merits,” 
provided that the Commission concludes that the other three factors required for a stay strongly support such action.  
ACA/NCTA Petition at 10.  Because we do not find that the other three factors strongly support ACA’s and 
NCTA’s request for a stay, we decline to reach this issue.  
23
USTelecom et al. Petition at 10; ACA/NCTA Petition at 11.
24
545 U.S. 967 (2005) (“Brand X”).
25
USTelecom et al. Petition at 14-15; ACA/NCTA Petition at 13-14.
26
Brand X, 545 U.S. at 986-1000.  See id. at 992 (holding that “the statute fails unambiguously to classify the 
telecommunications component of cable modem service as a distinct offering. This leaves federal 
telecommunications policy in this technical and complex area to be set by the Commission.”).  See also 2015 Open 
Internet Order at paras. 332-33 (describing the majority, concurring, and dissenting opinions on this point).
27
Brand X, 545 U.S. at 981(quoting Chevron U.S.C. Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 
863-64 (1984) (internal citation omitted)).  
28
2015 Open Internet Order at paras. 346-54.
29
ACA/NCTA Petition at 7.
Federal Communications Commission DA 15-563
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control over the Internet.”
30
But Petitioners’ ignore the Order’s definition of BIAS and its lengthy 
discussion of the scope of that service.  As quoted above, the Order defines BIAS as a service that 
“provides the capability to transmit data.”
31
  It is, by definition, a transmission service.  The Order
explains that, in this respect, the BIAS service identified and classified in the Order is the same as the 
transmission service discussed in Brand X and prior Commission Orders.
32
  The Commission further 
explained that “add-on” information services such as email and online storage that are offered together 
with BIAS are separable information service offerings that are not covered by the Order’s classification 
or rules.
33
  Thus, the Order itself makes plain that “[the Commission’s] reclassification of broadband 
Internet access service involves only the transmission component of Internet access service.”
34
  
14. Last, Petitioners argue that Brand X’s discussion was limited to the possible separate 
offering of “last-mile” transmission service “between and end-user’s customer’s premises and the cable 
company’s facilities.”
35
That reading of Brand X is created out of whole cloth. The Supreme Court 
nowhere limited its discussion of transmission to transmission over the “last-mile;” indeed, that term is 
never used in the opinion, by either the majority or the dissent. Instead, the majority identified the 
“telecommunications” that cable companies used in providing Internet service as traveling over the “high-
speed wire that transmits signals to and from an end user’s computer” without limitation.
36
  In any event, 
the Order’s classification of BIAS does not sweep in the entire Internet.
37
  The Commission made clear 
that BIAS does not include, for example, virtual private network (VPN) services, content delivery 
networks (CDNs), hosting or data storage services, or Internet backbone services.
38
15. Classification of BIAS as a Telecommunications Service.  Petitioners also argue that the 
Commission erred in finding that BIAS fits the definition of telecommunications service under 47 U.S.C. 
§ 153, contradicted Congressional intent embodied in section 230 of the Act, and failed to follow 
controlling Commission precedent, including the Stevens Report.  In the Order, the Commission engaged 
in a lengthy and comprehensive discussion of why BIAS fits the definition of telecommunications service 
and is not an information service.
39
  Petitioners’ assertion that BIAS meets every aspect of the definition 
of information service
40
largely ignores the Commission’s extensive analysis of this issue.
41
Likewise, 
Petitioners’ argument that section 230 of the Act confirms that BIAS is an information service
42
fails to 
address the Order’s specific analysis of this issue.
43
  
                                                     
30
USTelecom et al. Petition at 1.
31
2015 Open Internet Order at para. 336.
32
2015 Open Internet Order at n.1257.
33
2015 Open Internet Order at paras. 341, 356, 362 n.1005, 365.
34
2015 Open Internet Order at para. 382.
35
USTelecom et al. Petition at 14.
36
545 U.S. at 988.
37
“We are not . . . regulating the Internet, per se, or any Internet applications or content.”  2015 Open Internet Order
at para. 382.
38
2015 Open Internet Order at para. 340.
39
2015 Open Internet Order at paras. 306-87.
40
USTelecom et al. Petition at 11-13.  See also ACA/NCTA Petition at 11-13.
41
2015 Open Internet Order at paras. 365-81.
42
USTelecom et al. Petition at 11; ACA/NCTA Petition at 12 n.21.
43
2015 Open Internet Order at para. 386.
Federal Communications Commission DA 15-563
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16. Petitioners also argue that the Commission’s decision to classify BIAS as a 
telecommunications service contradicts Commission precedent.
44
  Petitioners assert, for example, that the 
Stevens Report definitively found that BIAS is an information service.
45
  They, however, again fail to 
address the Order’s consideration of those same arguments, which concluded that they ignore 
Commission precedent “demonstrating that the relevant statutory definitions are ambiguous, and that 
classifying broadband Internet access service as a telecommunications service is a permissible 
interpretation of the Act.”
46
  As one example, the Stevens Report expressly reserved judgment on whether 
facilities-based Internet access service provided by facilities-based ISPs qualified as a 
telecommunications service or an information service.
47
17. Petitioners briefly engage the Order’s analysis of the telecommunications systems 
management exception, but only to misconstrue the Commission’s finding in this regard and argue that 
the Commission’s reading of the telecommunications management exception is overly broad.
48
  Initially, 
Petitioners suggest that the Order found that BIAS is a telecommunications service merely because it fits 
within the “narrow” telecommunications management exception.
49
  This misconstrues the Commission’s 
finding. The Commission found that to the extent BIAS is offered along with other capabilities that 
would fall within the definition of an information service, these other capabilities do not transform what is 
otherwise a telecommunications service into an information service.
50
Instead, the other capabilities
“either fall within the telecommunications systems management exception or are separate offerings that 
are not inextricably integrated with BIAS, or both.”
51
Where a service that on its own would be an 
information service, such as caching, is “simply used to facilitate the transmission of information so that 
users can access other services,” it “falls easily within the telecommunications management exception to 
the information service definition.”
52
  As noted above, where separable offerings—such as an email 
address supplied by the broadband provider—have been made available alongside the offering of BIAS, 
such services remain outside the definition of BIAS and nothing in the Order suggests that they are 
subject to the Open Internet rules or regulation as telecommunications services.  
18. Petitioners also contend that the Commission’s definition of BIAS is an attempt to evade 
the D.C. Circuit’s decision in Verizon v. FCC,
53
and that the Commission impermissibly subjects 
interconnection and traffic exchange agreements to Title II without any determination that those services 
constitute common carriage.
54
  Contrary to Petitioners’ arguments, the Commission provided a detailed 
analysis of its conclusion that BIAS involves the exchange of traffic between a broadband Internet access 
                                                     
44
USTelecom et al. Petition at 10-13; ACA/NCTA Petition at 11-15.
45
USTelecom et al. Petition at 12-13; ACA/NCTA Petition at 12.
46
2015 Open Internet Order at para. 314.
47
2015 Open Internet Order at para. 315 (citing Stevens Report at para. 60 and n.140).
48
USTelecom et al. Petition at 13; ACA/NCTA Petition at 13 n.22 (both discussing the 2015 Open Internet Order at 
paras. 366-75).
49
USTelecom et al. Petition at 13 (“The Order . . . . argues . . . that Internet access services fall within the narrow 
‘telecommunications management’ exception to the definition of ‘information services[.]’”).
50
2015 Open Internet Order at para. 365.
51
2015 Open Internet Order at para. 365.
52
2015 Open Internet Order at para. 372.
53
740 F.3d 623 (D.C. Cir. 2014).
54
ACA/NCTA Petition at 14.
Federal Communications Commission DA 15-563
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provider and connecting networks and that exchange of traffic qualifies as common, not private,
carriage.
55
19. Adherence to the Administrative Procedure Act.  ACA and NCTA assert that the 
Commission violated the Administrative Procedure Act (“APA”) because the NPRM allegedly failed to 
provide adequate notice of the approach adopted and the Order is arbitrary and capricious.
56
20. First, ACA and NCTA argue that the Commission failed to provide adequate APA notice
because the NPRM’s discussion of reclassification was allegedly too brief, too general, and differed from 
the ultimate direction taken on interconnection.
57
  The Commission, however, noted that the 
reclassification of BIAS was expressly identified as a potential course of action in the NPRM, discussed 
arguments about notice of reclassification, and ultimately found that the actions taken in the Order were, 
in all relevant respects, either expressly raised by, or a logical outgrowth of, the NPRM.
58
  The 
Commission’s NPRM generated extensive and specific comment from the public on every aspect of this 
proceeding, including reclassification of BIAS, and was more than adequate.
59
21. ACA’s and NCTA’s initial argument that the Order was arbitrary and capricious is that 
the Commission failed to meet a requirement under the APA to provide a “more substantial justification” 
when departing from a conflicting prior policy that engendered significant reliance interests.
60
  As 
specifically discussed in the Order, the Commission does not bear a special burden in this instance,
61
but 
rather can find that reconsidering its prior decisions and reaching a different conclusion best reflects the 
factual record in this proceeding, and will most effectively permit the implementation of sound policy 
consistent with statutory objectives.
62
Moreover, the Commission considered and rejected the Petitioners’
argument about reliance interests in the Order, finding that “the legal status of the information service 
classification thus has been called into question too consistently to have engendered such substantial 
reliance interests that our reclassification decision cannot now be sustained absent extraordinary 
justification.”
63
22. In their specific allegations, ACA and NCTA challenge as arbitrary and capricious the 
Commission’s findings that consumers today view BIAS as distinct from other services that are offered 
by ISPs.
64
  In the Order, the Commission fully explained that the factual basis upon which it concluded
that BIAS today fits the definition of a telecommunications service was not limited to consideration of a 
few new developments but on an analysis of broad changes in the marketplace, including how the 
evolution of consumer demand and providers’ marketing of services have affected the marketplace.
65
  For 
instance, regardless of whether consumers may have had the technical capability to use third party 
services when the Commission first addressed the classification of BIAS, the Commission concluded that 
the market for BIAS has changed dramatically since that time and that the “widespread penetration of 
                                                     
55
2015 Open Internet Order at para. 364.
56
ACA/NCTA Petition at 15-20.
57
ACA/NCTA Petition at 18-20.
58
2015 Open Internet Order at paras. 206, 387, 393-94, 406.
59
See 2015 Open Internet Order at para. 387, n.1101. 
60
ACA/NCTA Petition at 15-18.
61
2015 Open Internet Order at paras. 357-58. 
62
2015 Open Internet Order at paras. 356-60.  
63
2015 Open Internet Order at para. 360.  
64
ACA/NCTA Petition at 16-17.  See also USTelecom et al. Petition at 16.
65
2015 Open Internet Order at paras. 346-54.
Federal Communications Commission DA 15-563
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broadband Internet access service has led to the development of third-party services and devices and has 
increased the modular way consumers have come to use them.”
66
  Moreover, Petitioners’ argument 
ignores the Commission’s finding in the Order that “even assuming, arguendo, that the facts regarding 
how BIAS is offered had not changed, in now applying the Act’s definitions to these facts, we find that 
the provision of BIAS is best understood as a telecommunications service.”
67
23. Reclassification of Mobile Broadband.  USTelecom et al. argue that mobile BIAS is
private mobile service exempt from regulation under Title II.
68
  Specifically, they contend that because 
mobile BIAS is interconnected to the Internet and not the telephone network, it cannot be considered an 
interconnected service and therefore does not meet the definition of commercial mobile service.
69
The 
Commission considered and rejected this argument, concluding that mobile BIAS today qualifies as a 
commercial mobile service based on an updated definition of the term “public switched network” and that 
the mobile BIAS widely available today to millions of subscribers is not “akin to the private mobile 
service of 1994, such as a taxi dispatch service, services that offered users access to a discrete and limited 
set of endpoints.”
70
  The argument by USTelecom et al. also ignores the Commission’s independent 
conclusion, pursuant to its statutory authority under section 332(d)(3), that mobile broadband Internet 
access is the “functional equivalent” today of a commercial mobile service.
71
24. While USTelecom et al. acknowledge that Congress gave the Commission authority to 
define the “public switched network,” they contend that the term cannot be interpreted to include the 
Internet because Congress has always used it to mean only the telephone network.
72
  This argument fails 
to give sufficient weight to the text of the statute itself and the Commission fully addressed and rejected 
the same argument in the Order.
73
  Section 332(d)(2) of the Act uses the term “public switched network” 
and not “public switched telephone network” and, as USTelecom et al. recognize, expressly delegates 
authority to the Commission to define the term “public switched network.”
74
  In the Order, the 
Commission reasonably concluded that “what is clear from the statutory language is not what the 
definition of ‘public switched network’ was intended to cover but rather that Congress expected the 
notion to evolve and therefore charged the Commission with the continuing obligation to define it.”
75
  The 
Commission has long understood section 332(d)(2) as embodying Congress’s expectation both that the 
definition of “public switched network” should evolve and that “a mobile service may be classified as 
private only if it is neither a [commercial mobile service] nor the functional equivalent of a [commercial 
mobile service].”
76
                                                     
66
2015 Open Internet Order at paras. 347.
67
2015 Open Internet Order at para. 360 n.993.
68
USTelecom et al. Petition at 17-19.
69
USTelecom et al. Petition at 17-18.
70
2015 Open Internet Order at paras. 388-408.
71
2015 Open Internet Order at para. 404.
72
USTelecom et al. Petition at 19.
73
2015 Open Internet Order at paras. 395-99.
74
47 U.S.C. § 332(d)(2); USTelecom et al. Petition at 19.
75
2015 Open Internet Order at para. 396.
76
Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services, 
GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1436-37 at para. 59, 1445-46 at para. 76 
(1994).
Federal Communications Commission DA 15-563
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25. USTelecom et al. also argue that the Commission acted arbitrarily in reversing its prior 
approach to applying open Internet requirements to mobile BIAS.
77
  Contrary to Petitioners’ argument, 
however, in the Order the Commission provided a thorough analysis and detailed explanation of the 
changes in the mobile broadband marketplace that warrant a revised approach.
78
  Moreover, the 
Commission’s decision to apply the same open Internet requirements to both fixed and mobile BIAS was 
not based just on the fact that mobile broadband has become an essential means of access to the Internet 
for hundreds of millions of consumers.  Rather, the Commission found that, because of the widespread 
use of mobile service, “maintaining a regime under which fewer protections apply in a mobile 
environment risks creating a substantively different Internet experience for mobile broadband users as 
compared to fixed broadband users.”
79
  The Commission also based its decision on other factors, 
including the incentives and ability of mobile broadband providers to engage in conduct that would be 
harmful to the virtuous cycle of innovation.
80
  USTelecom et al. fail to engage the Commission’s analysis 
on these issues.
26. Finally, USTelecom et al. assert that the Commission did not provide adequate notice 
because the NPRM did not propose to amend the Commission’s rules to redefine the term public switched 
network, adopt a new functional equivalence test, or reverse its prior position that the functionalities of 
third-party applications are not capabilities of the mobile broadband service itself.
81
  On the contrary, the 
Commission thoroughly articulated in the Order why revising the definition of “public switched network” 
and classifying mobile BIAS as a commercial mobile service were a logical outgrowth of the proposals in 
the NPRM.
82
  Those proposals expressly asked whether mobile BIAS would fit within the definition of 
“commercial mobile service,” and specifically cited to the pertinent Commission rule implementing that 
definition.
83
  The NPRM further pointed commenters to the pending Broadband Classification NOI, 
which asked “[t]o what extent should section 332 of the Act affect our classification of wireless 
broadband Internet services?,” and directed that the record be refreshed in that proceeding, “including the 
inquiries contained herein.”
84
  Furthermore, the Commission’s conclusion that mobile BIAS is not a 
private mobile service because it is the functional equivalent of a commercial mobile service 
independently supports the classification of such service as a telecommunications service.  Finally, the 
Order recognizes that a number of parties — including some of these same Petitioners and their principal 
members — directly addressed on the record the application of section 332(d) and the Commission’s 
implementation of rules to mobile BIAS.
85
  
27. For the reasons stated above, Petitioners have failed to demonstrate a likelihood of 
success on the merits.
86
                                                     
77
USTelecom et al. Petition at 20-21.
78
2015 Open Internet Order at paras. 86-101.
79
2015 Open Internet Order at para. 92.
80
2015 Open Internet Order at paras. 91, 94-101.
81
USTelecom et al. Petition at 19.
82
2015 Open Internet Order at paras. 393-94.
83
2015 Open Internet Order at para. 393 (citing NPRM).  See also 2014 Open Internet NPRM, 29 FCC Rcd at 
5614, para. 150 & n.307.
84
See 2015 Open Internet Order at para. 393 & nn.1125-1131.  See also 2014 Open Internet NPRM, 29 FCC Rcd at 
5613-14, para. 149 & n.302. 
85
2015 Open Internet Order at para. 394.
86
See supra n.21 (citing judicial decisions establishing the standard for a stay). 
Federal Communications Commission DA 15-563
10
B. Petitioners Will Not Suffer Irreparable Injury
28. Several general principles govern the irreparable injury inquiry.  First, “the injury must 
be both certain and great; it must be actual and not theoretical.”
87
  A petitioner must also “substantiate the 
claim that the irreparable injury is ‘likely’ to occur. . . . Bare allegations of what is likely to occur are of 
no value since the court must decide whether the harm will in fact occur.”
88
  Further, the mere fact of 
government regulation and the associated costs of compliance with that regulation are insufficient to 
prove irreparable injury.
89
  Finally, litigation costs associated with new regulation, “even substantial and 
unrecoupable cost, does not constitute irreparable injury.”
90
  
29. Title II and the General Open Internet Conduct Rule.  As noted above, Petitioners do not 
seek a stay of any of the Commission’s three “bright line” rules, with which ACA and NCTA claim they 
comply.
91
  Rather, their claims of irreparable injury reduce principally to the requirement of complying 
with the general open Internet conduct rule and those few core Title II standards as to which the 
Commission did not exercise statutory forbearance authority.  Thus, Petitioners suggest that “broad yet 
uncertain Title II requirements” will cause Petitioners to incur potential compliance costs and potential 
future litigation costs that will negatively impact Petitioners’ businesses.
92
  Petitioners similarly allege 
that the prohibition on unreasonably interfering with or disadvantaging the ability of consumers and edge 
providers to reach one another on the Internet will create uncertainty, which will “stifle investment and 
innovation and harm consumers.”
93
30. Petitioners’ broad arguments regarding an environment of uncertainty ignore that they 
already were subject to a case-by-case standard governing their conduct.
94
  For over two years while the 
2010 Open Internet rules were in effect, all fixed broadband providers were subject to a prohibition on 
“unreasonable discrimination.”
95
  Moreover, all BIAS providers are subject to general legal standards 
under other federal and state laws and regulations that govern their conduct with respect to protecting 
consumers and competition.  Using Petitioners’ logic, the simple act of being made subject to such 
general conduct standards would have irreparably harmed their businesses’ investment, innovation, and 
customers.  It did not.  As the Order explains, neither applying a “just and reasonable” standard—nor a 
“no unreasonable interference” standard—will harm investment, innovation, or consumers, a fact 
supported by a decade of investment prior to reclassification and discussed at length in the Order.
96
                                                     
87
Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
88
Wisconsin Gas Co., 758 F.2d at 674.
89
A.O. Smith Corp. v. FTC, 530 F.2d 515, 527 (3d Cir. 1976) (“Any time that a corporation complies with a 
government regulation that requires corporation action, it spends money and loses profits; yet it could hardly be 
contended that proof of such an injury, alone, would satisfy the requisite for a preliminary injunction.”).
90
FTC v. Standard Oil Co. of Calif., 449 U.S. 232, 244 (1980) (quoting Renegotiation Board v. Bannercraft 
Clothing Co., 415 U.S. 1, 24 (1974)); Morgan Drexen, Inc. v. CFPB, No. 13-5342, slip op at 19 n. 3 (D.C. Cir. May 
1, 2015).
91
USTelecom et al. Petition at 2 & n.2; ACA/NCTA Petition at 1 n.3.
92
USTelecom et al. Petition at 21-22. 
93
USTelecom et al. Petition at 24.
94
USTelecom et al. Petition at 21; see ACA/NCTA Petition at 20-21.
95
See 2014 Open Internet NPRM, 29 FCC Rcd at 5600-01, at paras. 113-14 & n.236 (demonstrating that the 
prohibition against unreasonable discrimination was in effect for two years from its implementation until the D.C. 
Circuit’s holding in the Verizon decision).
96
2015 Open Internet Order at paras. 409-25.
Federal Communications Commission DA 15-563
11
31. Even so, the Commission provided significant additional regulatory relief and certainty 
by forbearing from large portions of Title II and its implementing rules.
97
  The Commission forbore from 
27 provisions of Title II and over 700 rules in crafting the framework about which Petitioners complain.
98
  
The Order explains “mobile voice services have been regulated under a similar light-touch Title II 
approach since 1995—and investment and usage boomed.”
99
  Petitioners’ claims are thus additionally 
belied by a history of successful investment and innovation under Title II, as explained in the Order.
100
32. Finally, Petitioners’ alleged harms are insufficiently concrete, and are associated with the 
mere fact of being subject to regulation beyond the “bright-line” rules adopted in the Order or the 
possibility of future litigation pursuant to that regulation.  Rather, Petitioners argue that they will expend 
resources on compliance costs and speculate that they will be subject to litigation.
101
  As the Supreme 
Court has noted, litigation costs are not irreparable harm.
102
  Nor are costs of regulatory compliance, in the 
normal course.
103
  Even assuming these were allegations that are properly within the scope of our 
consideration for what constitutes irreparable harm, Petitioners do not make a sufficient case that these 
are “certain and great” harms.
104
  
33. Privacy Protections.  Petitioners allege that the Commission’s reclassification of BIAS 
creates “significant uncertainty” as to whether customized outbound marketing programs can continue in 
their current form
105
or will potentially “subject providers to enforcement and liability if they guess wrong 
as to how ‘broadband-related CPNI’ is to be treated under Section 222(c).”
106
  Petitioners further assert 
that the Commission’s interpretation of section 222(a) requires carriers to apply detailed authentication 
requirements and provide customers with information about their accounts only if specific password 
procedures are followed.  Petitioners assert that implementing those “minimum” procedures in the 
broadband context will be costly and difficult, and will also damage the goodwill of Petitioners’ members 
because customers will be frustrated when they are subjected “to a cumbersome, unnecessary process in 
accessing their own accounts.”
107
34. The harms alleged by Petitioners with respect to section 222 presuppose that the 
Commission has imposed prescriptive regulations on the use of broadband-related consumer proprietary 
network information (CPNI).  In fact, the Order and related Commission activities make clear that the 
Commission is not applying its existing telephone-centric CPNI regulations to broadband-related CPNI, 
but is taking a careful and thoughtful approach in this area, stating that “the Commission’s current rules 
implementing section 222” were not necessarily “well suited to broadband Internet access services.”
108
  
                                                     
97
2015 Open Internet Order at paras. 440-527.
98
2015 Open Internet Order at paras. 456-536.
99
2015 Open Internet Order at para. 39.
100
2015 Open Internet Order at paras. 409-25.
101
USTelecom et al. Petition at 22; ACA/NCTA Petition at 20-21.
102
FTC v. Standard Oil Co. of Calif., 449 U.S. 232, 244 (1980) (quoting Renegotiation Board v. Bannercraft 
Clothing Co., 415 U.S. 1, 24 (1974)).
103
A.O. Smith Corp., 530 F.2d at 527.
104
Wisconsin Gas Co., 758 F.2d at 674.
105
See USTelecom et al. Petition  at 26-27; ACA/NCTA Petition at 24 (asserting that Petitioners may need to 
change their existing practices regarding the use of broadband customer CPNI to market other services to them, such 
as cable television and voice services).
106
See USTelecom et al. Petition at 26-27; ACA/NCTA Petition at 24 n.47. 
107
ACA/NCTA Petition at 25-26.
108
2015 Open Internet Order at para. 467.
Federal Communications Commission DA 15-563
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Petitioners reference the password authentication requirements in section 64.2010 of the Commission’s 
rules,
109
and assert that the costs of complying with those requirements will cause irreparable harm in 
terms of costs and customer goodwill.  However, in the Order, the Commission expressly declined to 
apply section 64.2010 and other pre-existing CPNI regulations to BIAS, “pending the adoption of rules to 
govern broadband Internet access service in a separate rulemaking proceeding.”
110
  Petitioners also argue 
that section 222(c) itself prohibits them from using broadband-related CPNI to market other services to 
existing customers.
111
  However, they do not credibly quantify the nature or extent of any associated 
harm, making this harm speculative.
112
  Further demonstrating the Commission’s careful approach to 
implementing section 222 to broadband Internet access, on April 28, 2015, Commission staff held a 
public workshop on broadband consumer privacy where Commission staff noted the Commission’s 
decision not to apply the specific existing CPNI rules to BIAS as a matter of course, and Commission 
Chairman TomWheeler referred to the workshop as the “beginning of a very important conversation.”
113
35. The Petitioners’ allegations about the harm of section 222’s application to BIAS also rest 
on the faulty assumptions that providers of these services did not previously face regulatory oversight 
with respect to the protection of subscriber privacy.  In fact, broadband providers large and small were not 
free before the Order from potential government action for failure to protect the security of broadband 
customer information and/or notify customers of any breach. Given that multiple other governmental 
entities could have taken action against BIAS providers for privacy and security violations, the fact that 
the Commission now make take similar action cannot be irreparable harm.
36. For instance, BIAS providers have faced threat of action by the FTC for any “unfair or 
deceptive acts or practices,” which the FTC has interpreted on a case-by-case basis without implementing 
rules.
114
  Since 2002, the FTC has taken over 50 actions against companies for failing to employ 
reasonable data security measures.
115
  In 2014, a federal district court affirmed the FTC’s authority to 
challenge unfair data security practices using its Section 5 authority.
116
  Second, 47 states and the District 
                                                     
109
See 47 C.F.R. § 64.2010.
110
2015 Open Internet Order at para. 462.  
111
ACA/NCTA Petition at 24.
112
For example, AT&T “estimates” that, were it to cease its marketing programs that use broadband-related CPNI, it 
would lose over $800 million per year in lost revenues from selling other products and services to its broadband 
customers through use of their CPNI.  See USTelecom et al. Petition, Collins et al. Decl. para. 19.  However, AT&T 
provides no explanation or support for the calculation of this figure, and AT&T concedes that the estimate does not 
attempt to account for other substitute methods of marketing.  Id. at para. 20.  More fundamentally, as explained 
above, the Order makes clear that pre-existing CPNI regulations do not now apply to BIAS.  We therefore cannot 
credit the estimate of harm, quite apart from whether lost sales opportunities are the kind of irreparable injury that 
outweighs the important privacy benefits embodied in section 222’s protections for consumers and the public 
interest.
113
See Broadband Consumer Privacy Workshop, April 28, 2015, at 6:54(video available at 
https://www.fcc.gov/events/wcb-and-cgb-public-workshop-broadband-consumer-privacy); see also id. at 38:45 
(Lisa Hone, Associate Bureau Chief, Wireline Competition Bureau, stating that “this is the beginning of this 
conversation”).
114
Section 5(a)(1) of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 
U.S.C. § 45(a)(1).
115
See Federal Trade Commission, 2014 Privacy and Data Security Update, at 5, at 
https://www.ftc.gov/system/files/documents/reports/privacy-data-security-update-
2014/privacydatasecurityupdate_2014.pdf.  For instance, “[i]n 2012, the FTC filed suit against global hospitality 
company Wyndham Worldwide Corporation and three of its subsidiaries for alleged data security failures that led to 
three data breaches at Wyndham hotels in less than two years.”  Id.
116
FTC v. Wyndham Worldwide Corp., 10 F. Supp. 3d 602 (D.N.J. 2014).
Federal Communications Commission DA 15-563
13
of Columbia have adopted laws related to data security.
117
  As the National Conference of State 
Legislatures (NCSL) has explained, “[s]ecurity breach laws typically have provisions regarding who must 
comply with the law (e.g., businesses, data/ information brokers, government entities, etc.); definitions of 
‘personal information’ (e.g., name combined with SSN, drivers license or state ID, account numbers, 
etc.); what constitutes a breach (e.g., unauthorized acquisition of data); requirements for notice (e.g., 
timing or method of notice, who must be notified); and exemptions (e.g., for encrypted information).”
118
Third, with respect to any provider of cable television service,
119
section 631 of the Act already imposes 
privacy and data security requirements with respect to the offering of “any cable service or other service” 
delivered using the cable system.
120
  Moreover, to the extent that Petitioners claim that the Commission’s 
implementation of section 222 exposes them to the risk of unjust “after-the-fact forfeitures,”
121
we note 
that the Commission cannot impose a penalty in the absence of “fair notice of what is prohibited.”
122
  The 
notion, therefore, that providers of broadband would suffer irreparable harm if required to meet basic 
privacy and data security standards has no bearing in fact.
37. Petitioners’ own statements and actions in other contexts contradict their assertions of 
harm from application of the basic privacy requirements of section 222 of the Act, such as a requirement 
to obtain customer “approval” for use of sensitive information or protect the “confidentiality” of 
proprietary information about the customer.
123
  These statements and actions illustrate that these 
companies already are familiar with the need to employ reasonable privacy practices, and apparently 
obtain some form of approval for outbound marketing programs.  Further, we observe that all BIAS 
                                                     
117
See National Conference of State Legislatures, Security Breach Notification Laws, (Jan. 12, 2015), at 
http://www.ncsl.org/research/telecommunications-and-information-technology/security-breach-notification-
laws.aspx.
118
Id.
119
This would include all of the declarants in the ACA/NCTA Petition and, at a minimum, many of USTelecom’s 
members that offer subscription video service.
120
47 U.S.C. § 551 (emphasis added); see also Congressional Research Service, RL34693, Privacy Law and Online 
Advertising, at 7- 10 (Jan. 20, 2010) (discussing conflicting federal case law concerning whether and to what extent 
the requirements of section 631 of the Act apply to BIAS offered by providers of cable services).
121
USTelecom et al. Petition, AT&T Decl. at paras. 6, 28.
122
FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012).
123
Comments of the National Cable & Telecommunications Association, Privacy in an Era of Rapid Change, FTC 
File No. P095416, at 1-2 (Feb. 11, 2011), available at
https://www.ftc.gov/sites/default/files/documents/public_comments/preliminary-ftc-staff-report-protecting-
consumer-privacy-era-rapid-change-proposed-framework/00432-58038.pdf. (“For cable operators, the privacy of 
their customers is not a new concern.  Since long before they began offering broadband service, cable operators have 
been taking steps to protect customers of their cable television service against any undesired disclosure of their 
personally identifiable information (‘PII’) and their purchasing and viewing decisions.  Since 1984, such measures 
have been required by federal law.  But they’re also a business imperative – especially in today’s competitive 
broadband marketplace.”); Comments of AT&T before the Department of Commerce Internet Policy Task Force, 
Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework, at 10 (Jan. 28, 
2011), available at https://www.ftc.gov/sites/default/files/documents/public_comments/preliminary-ftc-staff-report-
protecting-consumer-privacy-era-rapid-change-proposed-framework/00420-58060.pdf. (describing the “complex 
regulatory system” of data protections found in overarching federal and state obligations); AT&T, AT&T Privacy 
Policy, http://www.att.com/gen/privacy-policy?pid=2506 (last visited May 4, 2015) (stating its policy to, among 
other things, “protect customers’ privacy and keep personal information safe” and  “give customers control about 
how AT&T uses customers’ information for marketing purposes”); Cox Communications, Annual Notice to Cox 
Customers, Your Privacy Rights as a Cox Customer and Related Information, 2015 Customer Information (Jan. 1, 
2015), http://www.cox.com/aboutus/policies/annual-privacy-notice.cox (last visited May 4, 2015) (committing to let 
its customers “know how we will collect and use your Personally Identifiable Information”).
Federal Communications Commission DA 15-563
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providers have been under an obligation under the transparency rule adopted in the 2010 Open Internet 
Order to disclose their privacy policies, including whether network management practices entail 
inspection of network traffic and whether traffic information is stored, provided to third parties, or used 
by the carrier for non-network management practices.
124
  
38. Traffic Exchange.  Adding to their claims of irreparable harm, Petitioners assert that the 
Commission’s assertion of jurisdiction over traffic exchange disputes “threatens to undo countless 
interconnection agreements,”
125
“exposes [broadband providers] to costly and unpredictable litigation,” 
126
and “prevent[s] [broadband providers] from entering into fair, market-based agreements.”
127
  We disagree. 
39. To support their allegations, Petitioners cite to the inapposite Iowa Utils. Bd. v. FCC, 
which involved specific rate regulation by the Commission.
128
  Here, however, the Commission is not 
regulating specific rates or setting prices.  It is merely asserting that broadband provider conduct—even at 
the point of interconnection—must be just and reasonable under sections 201 and 202 of the 
Communications Act.
129
  The case-by-case approach adopted in the Order does not demonstrate 
“ignorance” on behalf of the Commission as alleged by USTelecom et al.
130
  Rather, it reflects the 
Commission’s commitment to avoid ex ante prescriptive regulatory intervention in “an area that 
historically has functioned without significant Commission oversight” and thus the adoption of a “light 
touch” regulatory backstop.
131
40. Moreover, Petitioners do not convincingly demonstrate a harm caused by the Order.  
They assert that some Internet traffic exchange providers have been emboldened by the Commission’s 
assertion of jurisdiction to seek what Petitioner argues are unreasonable traffic exchange arrangements, 
holding broadband providers hostage with the threat of a Commission enforcement action.
132
  But this is 
not new.  Public reports of edge providers and transit providers demanding settlement-free peering from 
BIAS providers predate any action the Commission took in the Order itself.
133
  Petitioners’ assertions that 
meritless complaints will provide negotiating leverage are also unpersuasive.
134
  The Order clearly states 
that “should a complaint arise regarding BIAS provider Internet traffic exchange practices, practices by 
edge providers (and their intermediaries) would be considered as part of the Commission’s evaluation as 
to whether BIAS provider practices were ‘just and reasonable’ under the Act.”
135
                                                     
124
See Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC 
Rcd 17905, 17939, para. 56 (2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub 
nom. Verizon v. FCC, 740 F.3d 623, 659 (D.C. Cir. 2014).
125
ACA/NCTA Petition at 21.
126
ACA/NCTA Petition at 21. 
127
USTelecom et al. Petition at 28-29.
128
ACA/NCTA Petition at 23; USTelecom et al. Petition at 29. 
129
2015 Open Internet Order at paras. 202-05.
130
2015 Open Internet Order at paras. 202-05.
131
2015 Open Internet Order at para. 203.
132
USTelecom et al. Petition at 28; USTelecom et al. Petition, Poll Decl. at paras. 9-13; ACA/NCTA Petition, Da 
Silva Decl. at paras. 3-8.
133
See 2015 Open Internet Order at paras. 199-201 & n.499 (citing reports of prior Internet traffic exchange 
disputes).
134
See ACA/NCTA Petition, Da Silva Decl. at paras. 3-8; Cogent Opposition at 5 (noting that “Cogent’s preference 
. . . is that such interconnection agreements be negotiated in good faith”).
135
2015 Open Internet Order at para. 205 n.525.
Federal Communications Commission DA 15-563
15
41. Pole Attachments.  ACA and NCTA assert that “reclassification will trigger obligations 
for cable operators that they are offering telecommunications services” and that “public utilities have a 
strong financial incentive to use reclassification to justify increasing the rates that they charge cable 
operators for pole attachments.”
136
42. ACA and NCTA are correct that Commission rules require cable providers to “notify 
pole owners upon offering telecommunications services,”
137
but do not make a case that this constitutes 
irreparable harm. As previously noted, regulatory compliance costs in the normal course are not 
irreparable harm.
138
  This simple notice requirement, to the extent newly triggered for some cable 
operators by the reclassification of BIAS, is a standard requirement equally applicable to all cable 
providers who offer telecommunications services.  
43. Petitioners’ argument that they may face increased fees as a result of reclassification also 
is not persuasive.
139
As Petitioners recognize the Order “caution[s] utilities against relying on this 
decision to that end” and states that the Commission “can and will promptly take further action in that 
regard if warranted.”
140
  Further, providers are protected from irreparable injury by the Commission’s 
rules. Any rate increase must be noticed to the provider 60 days in advance, and the provider may seek a 
stay of any rate increase.
141
  Finally, to the extent that any situations remain in which the telecom and 
cable rate formulas for pole attachments produce different results, the Commission is taking its statements 
in the Order seriously.  For instance, on May 5, 2015, the Wireline Competition Bureau issued a Public 
Notice seeking to refresh the record in response to NCTA’s petition for reconsideration or clarification of 
the 2011 Pole Attachments Order, which asks the Commission to clarify its rules to ensure that the intent 
of the 2011 reforms is not thwarted.
142
44. Taxes and Fees. ACA’s and NCTAs’ assertions regarding the irreparable harms they will 
face as a result of new taxes and fees are also unpersuasive.  Petitioners assert that the Commission’s 
prior classification was the basis for Petitioners’ avoidance of a variety of taxes and fees, including new 
franchise fees and higher property taxes.
143
  Petitioners claim that “[s]tates and localities may therefore 
use reclassification as a justification for seeking to impose many new taxes and fees on broadband 
providers.”
144
  However, Petitioners’ bare speculation that state and local entities may have the authority 
                                                     
136
ACA/NCTA Petition at 26-27.
137
47 C.F.R. § l.1403(e).
138
A.O. Smith Corp., 530 F.2d at 527.
139
In 2011, the Commission brought the pole attachment rates paid by cable providers and telecommunications 
service providers closer to parity, which NCTA praised as “provid[ing] much-needed regulatory certainty that will 
permit broadband providers to extend their networks to unserved communities while fairly compensating pole 
owners.”  See Petition for Reconsideration or Clarification of the National Cable and Telecommunications 
Association, COMPTEL, and tw telecom inc., WC Docket No. 07-245, GN Docket No. 09-51, (filed June 8, 2011).
140
2015 Open Internet Order at para. 413 n.1207; ACA/NCTA Petition at 27.
141
47 C.F.R. § l.1403(c)-(d).
142
Implementation of Section 224 of the Act, A National Broadband Plan for Our Future, WC Docket No. 07-245, 
GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240 (2011); Petition for 
Reconsideration or Clarification of the National Cable and Telecommunications Association, COMPTEL, and tw 
telecom inc., WC Docket No. 07-245, GN Docket No. 09-51 (filed June 8, 2011); Parties Asked to Refresh Record 
Regarding Petition to Reconsider Cost Allocators Used to Calculate the Telecom Rate for Pole Attachments, WC 
Docket No. 07-245, GN Docket No. 09-51, Public Notice, DA 15-542 (WCB2015). 
143
ACA/NCTA Petition at 28.
144
ACA/NCTA Petition at 28.  
Federal Communications Commission DA 15-563
16
to impose new taxes and fees as a result of the Order does not qualify as an injury “of such imminence 
that there is a ‘clear and present’ need for equitable relief.”
145
  
45. As the Commission noted in the Order, “the recently reauthorized Internet Tax Freedom 
Act (ITFA) prohibits states and localities from imposing ‘[t]axes on Internet access.’”
146
This prohibition 
applies irrespective of the Commission’s classification of BIAS.
147
  ACA and NCTA nonetheless argue 
that the ITFA may not preclude taxation of broadband providers in certain instances, and that 
reclassification may therefore result in “new franchise fees” and “increased property taxes” levied by 
states or political subdivisions.
148
  For example, ACA and NCTA allege that “several states” assess 
property taxes for telecommunications services using a “much less favorable” methodology than that used 
for cable operators.
149
  And, even if a state at some future point made the decision to do so, Petitioners 
themselves state that they “will have strong arguments that these taxes and fees are preempted and thus 
unenforceable.”
150
  Thus, Petitioners have failed to show how any such harms amount to imminent and 
certain irreparable injury.  
46. Similarly, regarding franchise fees, the Petition argues that “[m]any franchising 
authorities impose separate franchise fees” on cable and telecommunications services, and that “these 
authorities may use the Order’s reclassification of broadband to impose separate fees on the broadband 
services of cable operators.”
151
  However, the Order expressly disapproves of this type of action by 
franchise authorities and, in any event, Petitioners again fail to provide evidence regarding the likelihood 
or imminence of this outcome.
152
  In any event, Petitioners’ unsubstantiated speculation regarding the 
impact of the Order on future taxes and fees does not demonstrate the type of irreparable harm that is 
required to support a petition for stay of our rules.
153
C. The Requested Stay Will Result in Harm to Others and is Contrary to the Public 
Interest
47. As described below, we find that the Petitioners failed to demonstrate that third parties 
will not be harmed if we grant the stay petitions.  For the same reasons, we conclude that the stay requests 
                                                     
145
Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quoting Ashland Oil, Inc. v. FTC, 409 F.Supp. 
297, 307 (D.D.C.), aff'd, 548 F.2d 977 (D.C. Cir.1976)).  Indeed, courts have long held that injunctive relief “will 
not be granted against something merely feared as liable to occur at some indefinite time.”  Id.  (quoting Connecticut 
v. Massachusetts, 282 U.S. 660, 674 (1931)).
146
2015 Open Internet Order at para. 430.
147
S. Comm. On Commerce, Sci. & Transp., Internet Tax Nondiscrimination Act of 2003, S. Rep. No. 108-155, at 2 
(Sept. 29, 2003), reprinted in 2004 U.S.C.C.A.N. 2435, 2437.  
148
ACA/NCTA Petition at 28.
149
ACA/NCTA Petition at 28 n. 53.
150
ACA/NCTA Petition at 28. 
151
ACA/NCTA Petition at 28 n.52.  
152
See ACA/NCTA Petition at 28. 
153
See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (noting that it is “well settled that economic 
loss does not, in and of itself, constitute irreparable harm” and denying a petition for stay “premised . . . upon 
unsubstantiated and speculative allegations of recoverable economic injury”).  We note that Petitioners’ claims 
regarding “grandfathered” state taxes suffer from many of the same deficiencies.  See ACA/NCTA Petition at 28 
n.52-54; ACA/NCTA Petition , Simmons Decl. at paras. 16-17.  Petitioners argue that their “members operating in 
these States may be required to pay . . . taxes that apply to ‘telecommunications service’ providers.” ACA/NCTA 
Petition at 28 n.52. Petitioners, however, do not show how these unspecified economic costs rise to the level of 
irreparable harm.  See Wisconsin Gas Co., 758 F.2d at 674 (“Recoverable monetary loss may constitute irreparable 
harm only where the loss threatens the very existence of the movant’s business.”).
Federal Communications Commission DA 15-563
17
are contrary to the public interest.  Petitioners allege that because they do not seek a stay of the three 
bright-line open Internet rules, there is not a sufficient threat of harm to others or to the public interest to 
warrant denial of their stay requests.
154
  Rather, they contend that granting their stay requests would 
maintain the status quo with respect to their own regulatory status and thereby advance the public interest 
by providing regulatory continuity and stability and promoting investment.
155
  The record and the 
Commission’s analysis in the Order belie these claims, and we find that these prongs of the standard 
weigh against the grant of Petitioners’ stay requests.  As noted above, the Commission found that bright 
line rules were insufficient to protect against all broadband provider conduct harmful to Internet 
openness.
156
  To protect against such conduct, the Commission adopted mechanisms for case-by-case 
evaluation of broadband provider conduct—the no-unreasonable interference/discrimination standard and 
the 201 and 202 framework for traffic exchange.
157
  Granting the Petitioners’ requested stay would 
eliminate these important regulatory backstops against the harms to consumers and innovators that the 
Commission sought to address through the aggregate regulatory measures adopted in the Order.
158
  The 
record revealed conduct occurring in the marketplace today not addressed by the three bright-line rules 
and for which the Commission needs the case-by-case review mechanisms to evaluate and take action as 
warranted to avoid harm to the open Internet.
159
Indeed, the backstop provided by the case-by-case 
review mechanisms are needed to avoid having the bright-line rules become a roadmap for problematic 
conduct. For example, parties could use conduct at the point of interconnection to evade the bright-line 
rules.
160
48. Regarding the Petitioners criticism of the application of section 222 of the Act to BIAS, 
we also observe that there is a strong public interest in ensuring that consumers’ privacy interests are 
protected, especially when using communications services.   Consumers are uniquely dependent on 
telecommunications networks to communicate some of their most personal information; therefore, staying 
the reclassification of BIAS would not favor the public interest.  For instance, WinDBreak points to the 
Commission’s TerraCom case as justifying its fear of the application of section 222 to its BIAS.  In that 
case, however, the Commission proposed penalties with respect to information about telephone service 
customers of a company that failed to take even the most basic measures to protect the security of 
sensitive information such as social security numbers—making that information available on an 
                                                     
154
ACA/NCTA Petition 29-30; USTelecom et al. Petition at 29-30.
155
ACA/NCTA Petition 29-30; USTelecom et al. Petition at 29-30.  
156
See supra at para. 4; 2015 Open Internet Order at paras. 135-36.
157
2015 Open Internet Order at paras. 108, 135-36, 194-206.
158
See, e.g., 2015 Open Internet Order at paras. 138-53 (providing guidance regarding the rule and in that context 
discussing examples of concerns about provider conduct arising outside the scope of the three bright line rules); id. 
at paras. 196-206 (discussing trends in Internet traffic exchange and associated disputes that have arisen); id. at App. 
B, para. 62 (finding with respect to the no unreasonable interference/disadvantage rule that “the approach we 
adopted provides sufficient certainty and guidance to consumers, broadband providers, and edge providers—
particularly smaller entities that might lack experience dealing with broadband providers—while also allowing 
parties flexibility in developing new services.”).  See generally, id. at paras. 60-103 (discussing the history and 
continuing need for open Internet protections and for Commission action to preserve Internet openness).
159
See, e.g., 2015 Open Internet Order at para. 151 (discussing concerns expressed by some filers that certain 
sponsored data plans “may hamper innovation and monetize artificial scarcity” along with arguments from other 
filers claiming that there are benefits from such plans); id. at para. 153 (discussing concerns expressed by some 
filers that certain data caps and usage-based pricing plans can be used to disadvantage competing over-the-top 
providers along with arguments from other filers that there are benefits from such arrangements); id. at paras. 196-
206 (disusing trends in Internet traffic exchange disputes).
160
2015 Open Internet Order at para. 205 (“[B]roadband Internet access providers have the ability to use terms of 
interconnection to disadvantage edge providers and that consumers’ ability to respond to unjust or unreasonable 
broadband provider practices are limited by switching costs.”); see also Cogent Opposition at 5-6.
Federal Communications Commission DA 15-563
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unsecured server reachable by a simple Google search—contrary to the company’s own assertions to 
customers about its security practices.  The Commission also found an apparent violation by TerraCom 
for failing to notify customers that their data had been breached.
161
  Rather than demonstrating 
government overreach, this case demonstrates appropriate protection of consumers for an egregious 
breach of basic privacy protections.
162
  
49. As the Commission observed, “communications networks are most vibrant, and best able 
to serve the public interest, when consumers are empowered to make their own decisions about how 
networks are to be accessed and utilized.”
163
  In this respect, the Commission’s Order maintains the status 
quo of an open Internet, which the Commission has committed to protect and promote since 2005.
164
  The 
record here was replete with evidence that the regulatory regime adopted in the Order is both essential to
protect consumers and innovators against harms arising from a lack of openness and best serves the public 
interest.
165
  Based on the analysis in the Order and the robust underlying record, we conclude that the 
requested stay is likely to result in harm to consumers and innovators and, for the same reasons, would be 
counter to the public interest.
IV. ORDERING CLAUSES
50. Accordingly, IT IS ORDERED, pursuant to the authority contained in sections 1, 4(i), 
4(j), 201, 202, and 303(r) and of the Communications Act of 1934, as amended, and the authority 
contained in section 706 of the Telecommunications Act of 1996, 47 U.S.C. §§ 151, 154(i)-(j), 155, 201, 
202, 303(r), 1302, and the authority delegated pursuant to sections 0.91, 0.291, 0.131, and 0.331 of the 
Commission's rules, 47 C.F.R. §§ 0.91, 0.291, 0.131, and 0.331, this Order Denying Stay Petitions in GN
Docket No. 14-28 IS ADOPTED.
                                                     
161
See TerraCom, Inc. and YourTel America, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 13325, 
13325, para. 2 (2014).
162
See 2015 Open Internet Order at para. 462 n.1381.
163
2015 Open Internet Order at para. 60.
164
2015 Open Internet Order at paras. 64-69.
165
See generally, 2015 Open Internet Order at paras. 75-103 (discussing the continuing need for open Internet 
protections and for Commission action to preserve Internet openness).  See also id. at paras. 86-101 (discussing 
factors persuading the Commission “to apply the same set of Internet openness protections to both fixed and mobile 
networks”); id. at para. 137 (discussing the advantages of the no-unreasonable interference/disadvantage standard 
relative to the no unreasonable discrimination standard adopted by the Commission in 2010).
Federal Communications Commission DA 15-563
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51. IT IS FURTHER ORDERED that the petitions for stay pending judicial review of United 
States Telecom Association, CTIA-The Wireless Association, AT&T Inc., Wireless Internet Service 
Providers, CenturyLink, American Cable Association, and the National Cable & Telecommunications 
Association Committee ARE DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Julie A. Veach
Chief
Wireline Competition Bureau
Roger C. Sherman
Chief
Wireless Telecommunications Bureau