FCC Wants Delay In Net Neutrality Trial Due To Government Shutdown, But Isn't Likely To Get It

from the good-luck-with-that dept

The FCC is requesting a delay in the opening arguments in the looming lawsuit over the agency's repeal of net neutrality rules, citing the government shutdown as justification. Oral arguments are slated to begin February 1 in the US Court of Appeals for the District of Columbia Circuit, beginning what should be a fairly insightful battle over the Ajit Pai FCC's historically unpopular move, and some of the dubious behavior it engaged in to try and downplay public opposition.

The court noted this week on its website that the trial is likely to proceed regardless of the government shutdown. The FCC quickly balked, filing a motion (pdf) requesting a delay in the trial. In the filing, the FCC cites guidance from the Department of Justice in requesting a delay out of what it suggests would be a wise "abundance of caution" as it attempts to prepare for the legal battle:

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in its filing. "However, 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."

Groups like Incompas, whose members have been fighting to restore the rules, issued their own motion (pdf) arguing that given the potential harms from the repeal, expediency is warranted:

"Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from Internet Service Providers ('ISPs'), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules. The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs, which may have services competing with edge provider services."

Both Incompas and consumer advocates like Public Knowledge's Harold Feld note that given that the DC Circuit has been denying numerous other deferments due to the shutdown, the FCC isn't likely to get what it's looking for:

Again, this legal fight is going to be very interesting to watch, as it's the first time the FCC will have to defend the various bizarre behaviors it engaged in during the repeal, including making up a DDOS attack (apparently to concoct an alternative explanation for the outrage-driven FCC website outage), blocking FOIA and law enforcement inquiries into those bogus comments the FCC refused to do anything about, or why its flimsy justifications for the repeal were pushed in perfect synchronicity with big telecom lobbyists.

If you were staring down the barrel of that particular gun, you'd probably want a delay too. Should the FCC lose, the agency's 2015 rules could be restored. If it wins, the FCC and its friends in the telecom sector need to find a way to prevent some future FCC or Congress from simply passing new rules, which is why they've been pushing bogus net neutrality laws even Congress hasn't been dumb enough to buy into quite yet. Get your popcorn ready.

Filed Under: court, dc circuit, doj, fcc, net neutrality, trial


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  • identicon
    Anonymous Coward, 17 Jan 2019 @ 6:39am

    [Int. COURT ROOM]

    Judge: Please explain these blatantly illegal actions and lies your department has pushed to further your cause. You have made move after move to weaken the powers of your own department. Why?

    Pai: ZOINKS! [Pai points at intern} It's his fault!

    PAI RUNS OUT OF THE ROOM, LEAVING HIS INTERN TO TAKE THE FALL.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 17 Jan 2019 @ 7:10am

    "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."

    Wow. If the FCC and DOJ can make this argument, shouldn't every defendant that be able to argue that they should have their trial extended until they can properly fund their defense?

    reply to this | link to this | view in chronology ]

    • identicon
      James T, 17 Jan 2019 @ 8:27am

      Re:

      Everyone is able to argue it. The judge would like have to rule one way or the other following proper procedures. Just making the argument doesn't mean you can show gravitas. Here the FCC has some ability to do that.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 17 Jan 2019 @ 9:09am

        Re: Re:

        Huh? The current FCC has about as much gravitas as a clown who just got a Pai in the face.

        reply to this | link to this | view in chronology ]

        • identicon
          James T, 17 Jan 2019 @ 11:45am

          Re: Re: Re:

          Well you have to take a step back, this is a serious enough case which is enough for congress to try to override the FCC. It's about wither the lawyers can explain this and convince a judge.

          Crazy things happen like guy in person granted temporary release to go to weddings and stuff. The DOJ currently has all it's lawyers learning how to replace toner cartridges and answer their own damn office telephones. I can see where this burden would prevent them from really approaching the case correctly. A month or two delay isn't really that significant here.

          If the court does grant the delay, If I were on the opposing side I'd allow it but I would also request they temporary reinstate the rules, due to additional delay.

          reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 18 Jan 2019 @ 1:26am

      Re:

      The cynic in me says it would never work for mere peasants but it would always work with the Govt and the "rich in distress".

      reply to this | link to this | view in chronology ]

  • icon
    cliff_badger (profile), 17 Jan 2019 @ 7:21am

    My pessimistic brain is screaming:

    They're going to just sit around asking questions along party lines. Come to no resolution and say "Hey we did our jobs right? Can we move on now?"

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 17 Jan 2019 @ 8:26am

    Sorry, FCC... you'll have to interrupt your "vacation" (as TheDonald calls it) and get back to "work" (and I use the term loosely--can one really call govt. corruption "work"? It's only "work" when you're actually doing the job you're supposed to be doing.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2019 @ 9:09am

    FCC's dubious behavior? Don't downplay criminal acts. Anyone else pulling shit like the FCC would most likely be in prison.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 17 Jan 2019 @ 9:29am

      Re:

      On what charge?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2019 @ 10:34am

        Re: Re:

        How about defrauding the public for starters. Its a government agency Bob.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 17 Jan 2019 @ 11:16am

          Re: Re: Re:

          Where has he committed fraud? Be specific.

          To be clear: I'm not defending Pai. He's corrupt as fuck and he's working against the interests of the American people. But I've seen no hard evidence that anything he's done is actually criminal. Ignoring a public comment period may be illegal, and may result in the agency's net neutrality repeal being overturned, but that's not remotely the same thing as Pai being personally responsible for a crime. Likewise, stonewalling an investigation is a shitty thing to do, but it's probably not criminal.

          If actual crimes on Pai's part come out in the course of various investigations and trials, I won't be surprised. But I haven't seen any such evidence so far.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Jan 2019 @ 7:30pm

            Re: Re: Re: Re:

            Using dead people's names to fraudulently one side the public debate comments and possible obstructing justice? You have a short memory.

            reply to this | link to this | view in chronology ]

            • icon
              Ninja (profile), 18 Jan 2019 @ 1:28am

              Re: Re: Re: Re: Re:

              First thing I thought. The whole thing has so many obvious evidence that shady behavior was happening and Pai refused to acknowledge and investigate that I can't see how he hasn't engaged in fraud. I doubt you can call it gross negligence at this point.

              reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 17 Jan 2019 @ 9:43am

    the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument.

    To be fair to the FCC, it is hard to get ready to appear in court when you're hit with a lawsuit outta nowhere, unexpectedly, and without any sort of warning.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2019 @ 10:38am

      Re:

      Its own actions and repeated track record should have prompted the possiblilty that at one point or another, someone would call them up on it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2019 @ 11:00am

      Re:

      hit with a lawsuit outta nowhere, unexpectedly, and without any sort of warning.

      Eh... We've been waiting for this to happen for a long time now. We were told it would happen and now it has. The FCC can't feign surprise at this one.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 17 Jan 2019 @ 10:09pm

    * Court declines to give Pai's FCC special treatment
    * FCC ignores the deadline to counterargue
    * Court declares the FCC in default
    * The internet wins

    It probably doesn't work this way, but one can dream.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jan 2019 @ 7:55am

    Well of course Pai wants to delay the trial as long as possible. Having to testify under oath to tell the truth must be confusing for a man who doesn't know the meaning of honesty. If he were ever administered truth serum his head would probably explode.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 20 Jan 2019 @ 2:57am

    FCC Wants Delay In Net Neutrality Trial

    [ ... ]

    US Court of Appeals for the District of Columbia Circuit,

    This alone is unusual. Normally there are no trials in the courts of appeal; indeed, the very essence of a court of appeals function is to review actions in trial courts and agencies where there may have been trials.

    reply to this | link to this | view in chronology ]


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