Shutdown could delay challenge of FCC’s net neutrality rollback

NelsonG · January 16, 2019

The ongoing shutdown of the federal government has already had adverse effects on millions nationwide, and now could even delay a major legal challenge to the FCC’s infamous net neutrality repeal. The agency moved yesterday to delay oral arguments scheduled for just two weeks from now.

The arguments in a consolidated lawsuit against the FCC led by the likes of Mozilla, Vimeo and industry group INCOMPAS were set to begin on February 1. But of course no one could have predicted a record-setting government shutdown (well — some might have). That has serious implications in a case taking place in the D.C. Circuit Court of Appeals.

In a court filing, the FCC explained its position:

…Due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument consistent with the Antideficiency Act…

That Act essentially prohibits the government from operating without adequate funding, which in this case includes U.S. legal counsel who would arguably be working without pay.

However, as you can imagine, there are plenty of federal court cases that can’t be delayed, and in those cases a judge can authorize the continued involvement of the federal lawyers and things will proceed. (This is all an extreme simplification, but sufficient for our purposes today.)

FCC Chairman Pai celebrates Congress failing to bring back net neutrality

The FCC argues, not without reason, that arguments should be postponed; the Department of Justice did issue blanket guidance earlier that civil cases like this one should in general be put off.

INCOMPAS, however, quickly filed an opposition to this idea, pointing out that the court had in previous cases denied similar requests:

…When federal appropriations lapsed in 2013, resulting in a ‘shutdown’ from October 1 to October 17, 2013, the court received Government motions to stay oral argument in at least sixteen cases. Every one of these motions was denied; and every time, the Government then participated in oral argument.

It’s down to the judge to determine whether the case is urgent enough to authorize federal counsel to work during the shutdown. If it decides to delay, it could be weeks or months before it is rescheduled.

A quick response is requested, as whichever decision the judge makes, both sides will need to be ready to accommodate it. I’ll update this post if I hear a decision is reached.