Meanwhile, Back At The D.C. Circuit . . . . The Open Internet Litigation Plods Along.
Meanwhile, Back At The D.C. Circuit . . . . The Open Internet Litigation Plods Along.
Meanwhile, Back At The D.C. Circuit . . . . The Open Internet Litigation Plods Along.

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    So, since Comcast has seen fit to once again raise net neutrality questions, it’s probably a good time to check in and find out what is going on with the court challenge and when we might get a resolution on whether the FCC Open Internet rules are actually enforceable.

    To recap briefly: The FCC adopted the its network neutrality rules in December 2010. Owing to delays caused by compliance with the Paperwork Reduction Act, the final version did not appear in the Federal Register until late September 2011. Folks filed in a bunch of different circuits, and the D.C. Circuit won the lottery back in October. 

    Since then, all the cases were consolidated in the D.C. Circuit, we had a little flurry of motions over Verizon Wireless’ theory that this was a “license modification” rather than a rulemaking and therefore appealable under a provision of the Act giving the D.C. Circuit exclusive jurisdiction. Meanwhile, the FCC argued that the single Petition for Reconsideration filed by Southernlink on the question of “managed services” warranted holding the entire appeal in abeyance until the FCC resolved it. Then things went quiet for a bit.

    On March 1, the D.C. Cir. issued an order resolving a couple of things. First, the motions panel denied the motion to hold in abeyance and referred the cases to a merits panel for briefing and oral argument. The motions panel declined to resolve the question about whether this constituted a rulemaking or license modification, so they deferred that question to the merits panel.

    On March 23 (last Friday), the merits panel got the ball rolling, sort of. As an initial step, the merits panel issued an order requiring all the parties (Petitioners, intervenors for both sides, FCC) to submit a proposed briefing plan (i.e., who gets to file what when). Responses to that order are due within 30 days of the order (i.e., April 23, as April 22 is a Sunday). This is typical for a case like this, but it does mean that an actual briefing schedule is unlikely until early May.

    Since none of the Petitioners requested an expedited proceeding, we should expect things to proceed at a normal pace for a case of this size and complexity. I would expect that Petitioners briefs will come due in the summer or early fall and we should wrap up briefing entirely by November.  That means oral argument isn’t likely until early 2013, with a decision probably 2 or 3 months after oral argument.

    Mind you, these are just guesses. The parties could agree to an expedited briefing schedule to wrap things up and get certainty on the rules as soon as possible, which might move things up a few months. But even at the fastest possible pace (and again, no one asked for expedited treatment when Petitioners filed their appeal), I would not expect oral argument before Q4 2012. Parties, intervenors, and amicii need time to write their briefs and replies, the court goes on summer recess, and just the general mechanics of getting a case from Petition to oral argument take time.

    What that means for parties looking to enforce the net neutrality rules in the meantime is anybody’s guess. Since the rules are not stayed, they are in effect. But I don’t expect the FCC to want to invest a lot of time in enforcing them until they know they are going to survive unless the conduct is so egregious that they can’t ignore it (I suspect this was one factor in Comcast’s calculations when it opted to be all cute about the Xbox thing). 

    In any event, we’ll keep you updated on any new developments. But don’t look for certainty on the rules, or FCC authority generally, any time soon.