Supreme Court Grants Another Extension in 2015 Net Neutrality Order Case; Theories Offered
The Supreme Court granted the government another extension, until April 4, to respond to appeals of a lower-court ruling affirming the FCC's 2015 net neutrality order. Some parties told us they believe the government is biding its time until the commission's recent "internet freedom" order repealing net neutrality regulation takes effect so the case over the 2015 order can arguably be dismissed -- with a lower court ruling possibly even vacated -- as moot. More petitioners challenging the repeal order filed Monday.
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The government had until Monday to respond to industry cert petitions challenging the 2015 Title II open internet order under the Communications Act. The solicitor general, which represents the FCC, filed a motion Friday seeking an extension until April 4 and said counsel for the petitioners didn't oppose the request. The court Monday granted the request for all respondents, according to its docket webpage for Daniel Berninger, et al. v. FCC, No. 17-498, and combined cases. It was the fifth such extension.
Some offered theories on why the government continued to seek delays . "My guess (and it is only a guess) is that the FCC would like to argue in its Answer to the petitions that the challenge to the Open Internet Order is moot because the new Restoring Internet Freedom [RIF] Order repealed most, if not all, of OIO’s provisions," emailed Anthony Caso, of the Center for Constitutional Jurisprudence at Chapman University School of Law, who represents Berninger. "They will have a hard time pressing that argument if RIF is not yet in effect. There is also the possibility that Congress will invoke the Congressional Review Act to 'repeal' the RIF. News reports say that advocates are nearing a majority in the Senate for the repeal. The new litigation against RIF and the uncertainty about whether there are votes under the Congressional Review Act to repeal RIF may be factors in the delay for the FCC Answer."
“I think that the government is waiting for the RIF order to become effective and then it will want to have the 2015 case dismissed as moot," emailed Free State Foundation President Randolph May. "And the Court doesn’t appear to have a problem with that strategy. This is obviously not a case of needing more time to write a brief.”
Others weren't commenting or were scratching their head about the delays. "I'm truly puzzled," emailed one former FCC lawyer. "I wonder how long the Court will let them kick the can." But another attorney said the government "can get an unlimited number of extensions. It's automatic."
"They will keep requesting extensions" until the FCC's net neutrality repeal order takes effect, said the second attorney, a net neutrality advocate. That process is expected to take months as the agency's new ISP transparency (disclosure) rule is reviewed under the Paperwork Reduction Act, including by the Office of Management and Budget. Once the order becomes effective, ISP interests "will likely move to vacate" the ruling of the U.S. Court of Appeals for the D.C. Circuit that affirmed the 2015 order under Chevron deference, said the attorney. The lawyer cited a Munsingwear doctrine (see ScotusBlog primer), but expected any such motion to be disputed. The FCC and ISP attorneys didn't comment.
Center for Democracy & Technology General Counsel Lisa Hayes emailed: "My best guess is they are trying to keep the Supreme Court petition in a holding pattern while the new challenges [to the net neutrality repeal order] get sorted out, but I haven’t seen that strategy expressly stated by anyone." She said CDT was filing a petition against the order Monday in the D.C. Circuit.
Etsy, Expa, Kickstarter, Automattic, Foursquare and Shutterstock filed another petition in the D.C. Circuit, Etsy said in a release, which added it would also file separately. The six companies filed a petition as the Coalition for Internet Openness. Monday was the last day petitioners could file in particular circuits if they wanted to ensure those circuits were included in an expected judicial lottery to determine the court venue. Nine previous petitions were filed in the D.C. Circuit and two were filed in the 9th Circuit (see 1803020040).