[x-pubpol] USA: Net Neutrality Update: The D.C. Circuit Goes Through the Motions

[Joly MacFie]

http://www.commlawblog.com/2012/03/articles/cellular/net-neutrality-update-the-dc-circuit-goes-through-the-motions
/

It’s been several months since that Hot Topic Of All Hot Topics, net
neutrality, graced our space here. When last we reported on the subject,
the net neutrality order had finally made it into the Federal
Register<http://www.commlawblog.com/2011/09/articles/internet/net-neutrality-rules-make-it-to-federal-register/>,
a number of parties had soughtjudicial review in a number of federal
courts<http://www.commlawblog.com/2011/10/articles/internet/net-neutrality-the-circuits-are-jammed/>
of
appeals, the D.C. Circuit had been
picked<http://www.commlawblog.com/2011/10/articles/internet/net-neutrality-verizon-lucks-out-in-circuit-lottery/>
as
the lucky court that will hear arguments on the matter, and alone petition
for reconsideration of the
order<http://www.commlawblog.com/2011/11/articles/internet/net-neutrality-update-one-lonely-reconsideration-petitioner/>
had
been filed with the Commission.

Then things got quiet.

It turns out that, despite the silence, things *have* been happening down
at the D.C. Circuit. Earlier this month the court acted on a couple of FCC
motions. While the court’s order consists of a whopping three sentences, it
at least provides some tea leaves for us to study while we wait for further
developments.

At issue were (a) the FCC motion to dismiss Verizon’s “notice of appeal”
and (b) an FCC motion to have the court hold the case in abeyance while the
Commission addresses the one petition for reconsideration of the net
neutrality decision that was filed with the agency. [Spoiler alert: the
court denies the abeyance request, but leaves the motion to dismiss in
limbo.]

You can find the background on the Verizon notice of appeal in this series
of posts from last
year<http://www.commlawblog.com/tags/verizon-net-neutrality-appeal/>.
As
we indicated back then, Verizon filed both a “notice of
appeal<http://www.fhhlaw.com/VerizonNoticeofAppeal.netneutrality.2011.09.30.PDF>”
(pursuant to Section 402(b) of the Communications Act) and a “petition for
review<http://www.fhhlaw.com/VerizonPetitionforReview.netneutrality.2011.09.30.PDF>”
(pursuant to Section 402(a)) in an apparent effort to boost the chances
that the D.C. Circuit would be the U.S. Court of Appeals to decide the fate
of net neutrality. The Commission moved to
dismiss<http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db1005/DOC-310225A1.pdf>
the
former almost immediately, presumably in the hope that, if the Verizon *
appeal* were dismissed, the case might ultimately land in some other
circuit.

Before Verizon even got a chance to oppose the FCC’s motion last fall, the
Joint Panel on Multidistrict Litigation (JPML) had selected the D.C.
Circuit to hear the case, so the Commission’s motion was moot.

Or maybe not.

Once the D.C. Circuit had jurisdiction of the case (that is, after the JPML
had pulled the D.C. Circuit’s ping pong ball out of the official drum), we
expected (a) the FCC to withdraw its motion and/or (b) Verizon to withdraw
its “notice of appeal”. Neither of those things happened.

Instead, Verizon filed an opposition to the FCC’s motion to dismiss, and
the FCC replied. In its reply the FCC acknowledged that the jurisdictional
issue the two parties were bickering over “will have little practical
effect” on the case. Nevertheless, both sides pressed the Court for
resolution of an issue that both seemed to agree was no longer important.

Which brings us to the court’s recent order. Rather than toss the
Commission’s motion to dismiss as moot, the court has referred that motion
to the panel of judges who will be assigned to hear the case. Most
importantly, the court has directed the FCC and Verizon “to address in
their briefs the issues presented” in the motion to dismiss; the parties
are specifically ordered *not* simply to incorporate their previous
arguments by reference.

Our guess is that, by taking incorporation by reference off the table, the
court is calling the FCC’s bluff. If the FCC really still thinks that it’s
important for the court to address the jurisdictional arguments presented
in the motion to dismiss, then the FCC is going to have to dedicate
precious space in its brief to those arguments.

Contrary to what some readers may think, appellate briefs are subject to
tight length limitations. Cases involving major league issues (like net
neutrality) can easily require *all* the permitted space (probably with
considerable squeezing to meet the court-imposed limits). Under such
circumstances, a party would normally be reluctant to chew up valuable
space tilting at unnecessary windmills. So it will be interesting to see
if, in its brief, the Commission chooses to pursue the question of whether
Verizon’s notice of appeal should have been dismissed. (Our guess is that
the issue will be dropped by all concerned.)

And the FCC’s motion to hold the case in abeyance? The court denied the
motion without discussion. The Commission had argued that, because the one
and only petition for reconsideration of the net neutrality order is still
pending, the whole proceeding is still technically in flux, and the court
might want to hold off on wading into it until the FCC has acted on the
pending recon.

That’s a classic argument, one the Commission has presented, successfully,
many times before. And it often makes sense. Why, after all, should the
court start to review an order which is still subject to change? No point
in trying to hit a moving target.

But here, the single petition for reconsideration involves a very limited
aspect of the overall net neutrality decision. (It seeks clarification of
the “special services” aspect of the order.) By contrast, Verizon is
challenging the most fundamental aspects of the decision, including
particularly whether the FCC has the necessary authority to engage in net
neutrality regulation.

In its opposition to the Commission’s abeyance motion, Verizon argued that,
given the limited nature of the matters still before the Commission,
resolution of the petition for reconsideration will not affect the core
issue already before the court. In other words, the real target of
Verizon’s challenge will *not* be moving around at all.

If the court had any reluctance at all about diving into the net neutrality
morass sooner rather than later, it could have granted the Commission’s
motion. That would likely have delayed the judicial review process for
months at least, maybe years. But the court declined that
opportunity. Court to parties: bring it on . . . now.

Of course, the court still had not, at last check, announced a briefing
schedule for the case, much less an argument date. But the denial of the
abeyance motion seems a pretty good indication that the court intends to
keep its review of net neutrality moving as quickly as possible.

-- 
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Joly MacFie  218 565 9365 Skype:punkcast
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 http://pinstand.com - http://punkcast.com
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