This week the possibility emerged that the ongoing government shutdown could delay net neutrality’s day in court — but the court was not sympathetic to the FCC’s request that the lawsuit be put off. Oral arguments for this major challenge to the agency’s rollback of 2015’s internet regulations will go ahead as planned on February 1.
During a shutdown, federal employees — including government lawyers — must have specific authorization to continue working, since it’s illegal for them to do so without pay. In this case a judge on the case must effectively make that authorization.
The FCC is among the many agencies and organizations affected by the shutdown, and many employees are stuck at home. As such it requested a postponement of an upcoming court date at which it and several companies and advocacy groups are scheduled to argue over its rollback of net neutrality.
A counter-argument filed immediately by industry group INCOMPAS pointed out that during previous shutdowns, the court had not granted such requests and should stick to that precedent.
The judges of the D.C. Circuit Appeals Court appear to agree with the latter argument; the FCC’s motion was denied and arguments will go forward as planned on February 1.
This is definitely not good news for the FCC. While it no doubt has its ducks in a row as far as defending its net neutrality rollback and new rules in court (it has done so before and will again), it’s far from ideal that the case will take place after a prolonged absence of all the pertinent experts from their posts. Briefing the lawyers, updating arguments, responding to industry concerns — it’s not easy to do when all your staff is sitting at home watching Bandersnatch over and over.
The lawsuit against the FCC has lots of good points to make about the rules it has established and the process by which it approved those rules, so this is no mere formality or frivolous suit. And net neutrality champions are likely happy to hear that they may very well catch the agency flat-footed.