Net Neutrality Update: One Lonely Reconsideration Petitioner
Could a single petition for reconsideration delay judicial review?
The Commission has announced that it has received one – and, apparently, only one – petition for reconsideration of its Open Internet order released last December (but not published in the Federal Register until September). For the curious among you, the seven-page petition – which is actually titled "Petition for Clarification or Reconsideration" – may be found here. (It asks the Commission to clarify the "special services" aspect of the net neutrality order, particularly as that aspect would affect "enterprise customers".)
The import of this filing lies not so much in the substance of the arguments it presents, but rather in the effect that it might have on the timing of judicial review. As we have previously reported, multiple petitions for review of the Open Internet order have been filed with various federal courts of appeals */; all those petitions are set to be heard in a consolidated proceeding before the U.S. Court of Appeals for the D.C. Circuit. So the train heading toward Judicial Resolution is loaded up and ready to leave the station.
But with the filing of the recon petition, there is now a lingering bit of business still pending before the Commission. Theoretically, the FCC’s disposition of the petition for reconsideration could alter – maybe even eliminate – some arguments that might otherwise have to be resolved by the court on appeal. When such circumstances arise, it is routine – but not absolutely required – for the court to hold its processes in abeyance pending agency action on the reconsideration issues. The abeyance approach often seems the most efficient way of handling such situations. Indeed, if the court steps in and tries to rule before the agency's action has stopped moving around, the result can be (and, in some cases has been) far more disruptive than if the court had chosen to wait. It will be interesting to see whether the FCC (or some other party) files a request for the Court to hold the appeal in abeyance in light of the petition for reconsideration.
In dealing with the recon petition, the Commission will next publish a notice in the Federal Register, alerting the public to the filing of the petition and inviting responses to it. What with the time it will likely take to get that notice into the Register, and then the additional time for responses and replies, the matter won’t be ready for the Commission even to begin to think about it until early next year, at the soonest.
Whether the single petition for reconsideration in the Open Internet proceeding will slow down – or stop entirely – the appellate process is not clear. It’s hard to imagine that a relatively terse recon effort can, or should, delay judicial resolution of the broad range of issues likely to be presented on appeal. But stranger things have been known to happen. We’ll try to keep an eye on things, so check back here for updates.
*/ Speaking of those multiple petitions for review filed in multiple circuits, we note that three of the petitioners are bailing out of the proceeding. The three – People's Production House, Media Mobilizing Project and Mountain Area information Network – had filed their petitions in the 2d, 3d and 4th Circuits, respectively. On October 28, each filed a Motion for Voluntary Dismissal asking the D.C. Circuit to dismiss its respective petition. No reason for the early departures was given (and, truth be told, the Court's rules do not require any such explanation). Suspicious minds might guess that these petitioners filed their initial petitions largely, if not exclusively, in an effort to keep the case out of the D.C. Circuit – but as they hustle out the door now, we'll probably never know for sure.
Yes, we do know why these petitioners are bowing out. They were recruited to petition by DC "astroturf" lobbyists who work on behalf of Google, which wrote the rules in secretive closed door meetings with FCC staff. The sole purpose of their filings was to attempt to shift the venue away from the DC Circuit -- a move which, they hoped, might benefit Google by making it less likely that its regulations would be voided.
The reason only one Petition for Reconsideration was filed at the FCC is that the many others who were aggrieved by the onerous, illegal regulations recognized that -- since they were imposed as a political favor to a campaign contributor -- such a petition would be a waste of time. They realized that the best thing to do was instead to challenge the regulations in court, where they would be overturned due to the FCC's lack of jurisdiction over the Internet.