After months of quiescence, net neutrality is on the move
The net neutrality rules have cruised past another hurdle: the Office of Management and Budget (OMB) has approved the two “information collection” aspects of the “open Internet” rules that the FCC shipped over there last July (as required by the Paperwork Reduction Act). While OMB approved those aspects almost two weeks ago (on September 9), the official announcement of the approval didn’t make it into the Federal Register until September 21.
OMB approval often marks the end of the rulemaking process in many instances; not so here. New rules generally cannot take effect until their full text has been published in the Federal Register. In many other rulemakings, the Commission takes care of that full-text publication first, and then follows up with getting OMB approval for any incidental “information collections” that may be involved. As a result, OMB approval of such collections is often the last development in the rulemaking process.
It hasn’t gone down that way with net neutrality.
Instead, the Commission went first to OMB to get preliminary clearance for the “information collection” components of the rules. Meanwhile, the FCC has held tight onto the full text of the rules. While that approach has prevented the net neutrality rules from taking effect, it has also prevented any would-be challengers from seeking judicial review of the rules. Federal Register publication of new rules is the starting gun for the appellate process. Until that publication happens, the courts don’t get involved. (Verizon was reminded of that when its initial appeal was tossed by the D.C. Circuit as premature.)
According to various trade press reports, the Commission has sent the full text of the rules to the Government Printing Office for publication in the Register in the next couple of weeks. (Note that we heard similar reports months ago and they didn’t pan out – so you might not want to bet the farm on this.) Once the rules are published, we can expect a stampede of appellate litigators heading toward their preferred U.S. Court of Appeals. (Any of the federal circuit courts of appeals are permitted to take this kind of case.) The smart money figures that petitions for review will be filed with a number of circuits. When that happens, the courts draw straws to decide which court gets it. That’s an oversimplification, of course – they don’t draw straws; they pull an entry out of a drum. Actually, the various cases are referred to the Judicial Panel on Multidistrict Litigation, which then does indeed pull a lucky entry out of a drum to determine which court gets the case. (The Commission has released a detailed notice explaining how to assure proper participation in such a lottery.)
In any event, after months of quiescence, it looks like net neutrality is on the move. Check back here for updates.