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

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.

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