Washington — A federal court ruling that could expose cable operators to open-access mandates on the data side of the business should not be blocked from taking effect while cable pursues a U.S. Supreme Court appeal, three consumer groups said in a court filing Thursday.
Opposing stay requests were the Consumer Federation of America, Consumers Union, and the Center for Digital Democracy, which, along with a few Internet Service Providers, have pressed the Federal Communications Commission and the federal courts to impose data access rules on cable.
The 9th U.S. Circuit Court of Appeals for the 9th Circuit is considering stay petitions from NCTA, the FCC, and the Justice Department. While NCTA vowed to fight on in the Supreme Court with or without a stay, the FCC and DOJ made no such promise to the 9th Circuit.
The consumer groups said the fact that the federal government might not appeal its own case to the high court indicated the potential harms to cable without a stay were exaggerated. The FCC and DOJ told the 9th Circuit they were “considering” further appeal but nothing more than that. DOJ and the FCC have a policy dispute over the legal rights of cable’s broadband service with regard to monitoring Internet-based criminals and terrorists.
The consumer groups said the FCC had other options besides gaining a stay. The agency, they said, could nullify the impact of the decision by using forbearance authority to shield cable from open access requirements.
“The FCC’s analysis is thus legally deficient and overstates the harm it claims would transpire absent a stay," the consumer groups said in a four-page motion.