FCC and net neutrality proponents win the first skirmish, but there are bigger battles ahead.
The net neutrality rules will take effect while the appeals of those rules go forward. The D.C. Circuit has denied requests that the rules be stayed.
What this means as a practical matter is far from clear. Whether most, some or any Internet users will notice any differences in the short run is uncertain. We shall see.
But let’s take a look at what the denial of the stay really means. According to Chairman Wheeler, it’s a “huge victory for Internet consumers and innovators”. Commissioners Clyburn and Rosenworcel were only slightly less ebullient. Republican Commissioners Pai and O’Rielly were, unsurprisingly, “disappointed”.
But really, what does the denial mean?
Not much. As a litigator this blogger has won his share of stays and lost his share as well. While action on a stay request provides the winner a momentary psychological boost, in the long run that boost doesn’t last. In the end, the final resolution, the up-or-down decision on the merits, is generally all that counts.
In order to get a stay, a party has to demonstrate (among other things) that it is likely to succeed on the merits of its case and that it will suffer irreparable harm if a stay isn’t imposed. That first element – likelihood of success – is what many folks focus on. The idea is that, if the party seeking the stay can satisfy the court that it’s likely to win, that means that that party is definitely going to win. If the stay request is denied, well, then, the appeal must be doomed.
But that’s not in fact what happens.
Once the warm afterglow of the stay decision wears off the winner – and the white hot resentment cools off for the loser – the appeal goes on. The briefs are prepared, all longer and more detailed than the stay papers. An oral argument is held. Not under the pressure of having to reach a decision by a deadline (i.e., before the rules are supposed to take effect), the court can delve deeply into the merits and, possibly, perceive facts, circumstances, arguments that might not have been as apparent or as persuasive in the stay papers. For sure, the decision on the stay may provide hope to the party who wins that skirmish, but it’s no guarantee.
And then there’s the irreparable harm factor. It’s extremely hard to demonstrate irreparable harm. Irreparable really means irreparable: The historical building is going to be destroyed; the firing squad will do its job; the documents, once disclosed, can’t be retrieved. That kind of factor is usually not present in appeals of administrative rulemaking decisions.
All in all, the deck is generally stacked against any party asking for the stay, so a denial is never surprising. And even if a stay is granted, there is absolutely no guarantee that the final decision on the merits will go the same way.
Further diminishing the predictive value of a stay decision, the court’s order granting or denying the stay tends not to shed any light at all. Just take a look at the D.C. Circuit’s net neutrality stay decision, the relevant totality of which reads “it is ORDERED that the motion for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review.” No explanation, no analysis, no language at all that might be closely parsed for clues about what might have swayed the Court. Does the Circuit’s terse ruling give you a clear sense of where the case is going and why? Me neither.
As often seems to happen, Commissioner Pai’s take on things may be closest to reality:
Although I am disappointed that the court did not stay the rules pending its review, this development was not unexpected. The bar for granting any stay is quite high, and I am pleased that the court did not suggest that the rules are in fact legally valid.
So net neutrality fans can cheer for a while, and its opponents can lick their wounds for the same while. Then it’s on to the merits. In denying the stay, the Court also agreed to speed up the merits process. The briefing and argument schedule have yet to be decided, but it seems likely that the pace will be picked up more than is usually the case. Still, the FCC order under review is staggeringly long and complex, so even if the process is expedited, we can only guess when the final decision will come down. And when it does, we can probably expect the loser to head to the Supremes.
So we still have a ways to go. Strap yourselves in and enjoy the ride.